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Arbitral court's ruling on Philippines vs China

PRESS RELEASE
THE SOUTH CHINA SEA ARBITRATION
(THE REPUBLIC OF THE PHILIPPINES V . THE PEOPLE S REPUBLIC OF CHINA )
The Hague, 12 July 2016
The Tribunal Renders Its Award
A unanimous Award has been issued today by the Tribunal constituted under Annex VII to
the UnitedNations Convention on the Law of the Sea (the Convention) in the arbitration
instituted by the Republic of the Philippines against the Peoples Republic of China.
This arbitration concerned the role of historic rights and the source of maritime
entitlements in the South China Sea, the status of certain maritime features and the
maritime entitlements they are capable of generating, and the lawfulness of certain
actions by China that were alleged by the Philippines to violate the Convention. In light of
limitations on compulsory dispute settlement under the Convention, the Tribunal has
emphasized that it does not rule on any question of sovereignty over land territory and
does not delimit any boundary between the Parties.
China has repeatedly stated that it will neither accept nor participate in the arbitration
unilaterally initiated by the Philippines. Annex VII, however, provides that the [a]bsence
of a party or failure of a party to defend its case shall not constitute a bar to the
proceedings. Annex VII also provides that, in the event that a party does not participate
in the proceedings, a tribunal must satisfy itself not only that it has jurisdiction over the
dispute but also that the claim is well founded in fact and law. Accordingly, throughout
these proceedings, the Tribunal has taken steps to test the accuracy of the Philippines
claims, including by requesting further written submissions from the Philippines, by
questioning the Philippines both prior to and during two hearings, by appointing
independent experts to report to the Tribunal on technical matters, and by obtaining
historical evidence concerning features in the South China Sea and providing it to the
Parties for comment.
China has also made clearthrough the publication of a Position Paper in December 2014
and in other official statementsthat, in its view, the Tribunal lacks jurisdiction in this
matter. Article 288 of the Convention provides that: In the event of a dispute as to
whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that
court or tribunal. Accordingly, the Tribunal convened a hearing on jurisdiction and
admissibility in July 2015 and rendered an Award on Jurisdiction and Admissibility on 29
October 2015, deciding some issues of jurisdiction and deferring others for further
consideration. The Tribunal then convened a hearing on the merits from 24 to 30
November 2015.
The Award of todays date addresses the issues of jurisdiction not decided in the Award
on Jurisdiction and Admissibility and the merits of the Philippines claims over which the
Tribunal has jurisdiction. The Award is final and binding, as set out in Article 296 of the
Convention and Article 11 of Annex VII.
Historic Rights and the Nine-Dash Line: The Tribunal found that it has jurisdiction
to consider the Parties dispute concerning historic rights and the source of maritime
entitlements in the South China Sea. On the merits, the Tribunal concluded that the
Convention comprehensively allocates rights to maritime areas and that protections for
pre-existing rights to resources were considered, but not adopted in the Convention.
Accordingly, the Tribunal concluded that, to the extent China had historic rights to
resources in the waters of the South China Sea, such rights were extinguished to the
extent they were incompatible with the exclusive economic zones provided for in the
Convention. The Tribunal also noted that, although Chinese navigators and fishermen, as
well as those of other States, had historically made use of the islands in the South China
Sea, there was no evidence that China had historically exercised exclusive control over
the waters or their resources. The Tribunal concluded that there was no legal basis for
China to claim historic rights to resources within the sea areas falling within the ninedash line.
Status of Features: The Tribunal next considered entitlements to maritime areas and
the status of features. The Tribunal first undertook an evaluation of whether certain reefs
claimed by China are above water at high tide. Features that are above water at high tide
generate an entitlement to at least a 12 nautical mile territorial sea, whereas features

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that are submerged at high tide do not. The Tribunal noted that the reefs have been
heavily modified by land reclamation and construction, recalled that the Convention
classifies features on their natural condition, and relied on historical materials in
evaluating the features. The Tribunal then considered whether any of the features
claimed by China could generate maritime zones beyond 12 nautical miles. Under the
Convention, islands generate an exclusive economic zone of 200 nautical miles and a
continental shelf, but [r]ocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf. The Tribunal
concluded that this provision depends upon the objective capacity of a feature, in its
natural condition, to sustain either a stable community of people or economic activity
that is not dependent on outside resources or purely extractive in nature. The Tribunal
noted that the current presence of official personnel on many of the features is
dependent on outside support and not reflective of the capacity of the features. The
Tribunal found historical evidence to be more relevant and noted that the Spratly Islands
were historically used by small groups of fishermen and that several Japanese fishing and
guano mining enterprises were attempted. The Tribunal concluded that such transient
use does not constitute inhabitation by a stable community and that all of the historical
economic activity had been extractive. Accordingly, the Tribunal concluded that none of
the Spratly Islands is capable of generating extended maritime zones. The Tribunal also
held that the Spratly Islands cannot generate maritime zones collectively as a unit.
Having found that none of the features claimed by China was capable of generating an
exclusive economic zone, the Tribunal found that it couldwithout delimiting a boundary
declare that certain sea areas are within the exclusive economic zone of the
Philippines, because those areas are not overlapped by any possible entitlement of
China.
Lawfulness of Chinese Actions: The Tribunal next considered the lawfulness of
Chinese
actions
in
the
South China Sea. Having found that certain areas are within the exclusive economic zone
of the Philippines, the Tribunal found that China had violated the Philippines sovereign
rights in its exclusive economic zone by (a) interfering with Philippine fishing and
petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese
fishermen from fishing in the zone. The Tribunal also held that fishermen from the
Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and
that China had interfered with these rights in restricting access. The Tribunal further held
that Chinese law enforcement vessels had unlawfully created a serious risk of collision
when they physically obstructed Philippine vessels.
Harm to Marine Environment: The Tribunal considered the effect on the marine
environment of Chinas recent large-scale land reclamation and construction of artificial
islands at seven features in the Spratly Islands and found that China had caused severe
harm to the coral reef environment and violated its obligation to preserve and protect
fragile ecosystems and the habitat of depleted, threatened, or endangered species. The
Tribunal also found that Chinese authorities were aware that Chinese fishermen have
harvested endangered sea turtles, coral, and giant clams on a substantial scale in the
South China Sea (using methods that inflict severe damage on the coral reef
environment) and had not fulfilled their obligations to stop such activities.
Aggravation of Dispute: Finally, the Tribunal considered whether Chinas actions since
the commencement of the arbitration had aggravated the dispute between the Parties.
The Tribunal found that it lacked jurisdiction to consider the implications of a stand-off
between Philippine marines and Chinese naval and law enforcement vessels at Second
Thomas Shoal, holding that this dispute involved military activities and was therefore
excluded from compulsory settlement. The Tribunal found, however, that Chinas recent
large-scale land reclamation and construction of artificial islands was incompatible with
the obligations on a State during dispute resolution proceedings, insofar as China has
inflicted irreparable harm to the marine environment, built a large artificial island in the
Philippines exclusive economic zone, and destroyed evidence of the natural condition of
features in the South China Sea that formed part of the Parties dispute.
An expanded summary of the Tribunals decisions is set out below.
The Tribunal was constituted on 21 June 2013 pursuant to the procedure set out in Annex
VII of the Convention to decide the dispute presented by the Philippines. The Tribunal is

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composed of Judge Thomas A. Mensah of Ghana, Judge Jean-Pierre Cot of France, Judge
Stanislaw Pawlak of Poland, Professor Alfred H.A. Soons of the Netherlands, and Judge
Rdiger Wolfrum of Germany. Judge Thomas A. Mensah serves as President of the
Tribunal. The Permanent Court of Arbitration acts as the Registry in the proceedings.
Further information about the case may be found at www.pcacases.com/web/view/7,
including the Award on Jurisdiction and Admissibility, the Rules of Procedure, earlier Press
Releases, hearing transcripts, and photographs. Procedural Orders, submissions by the
Philippines, and reports by the Tribunals experts will be made available in due course, as
will unofficial Chinese translations of the Tribunals Awards.
Background to the Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) is an intergovernmental organization
established by the 1899 Hague Convention on the Pacific Settlement of International
Disputes. The PCA has 121 Member States. Headquartered at the Peace Palace in The
Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and
other dispute resolution proceedings among various combinations of States, State
entities, intergovernmental organizations, and private parties. The PCAs International
Bureau is currently administering 8 interstate disputes, 73 investor-State arbitrations,
and 34 cases arising under contracts involving a State or other public entity. The PCA has
administered 12 cases initiated by States under Annex VII to the United Nations
Convention on the Law of the Sea.
In July 2013, the Tribunal in the South China Sea Arbitration appointed the PCA to serve
as Registry for the proceedings. The Tribunals Rules of Procedure provide that the PCA
shall maintain an archive of the arbitral proceedings and provide appropriate registry
services as directed by the Arbitral Tribunal. Such services include assisting with the
identification and appointment of experts; publishing information about the arbitration
and issuing press releases; organizing the hearings at the Peace Palace in The Hague;
and the financial management of the case, which involves holding a deposit for expenses
in the arbitration, such as to pay arbitrator fees, experts, technical support, court
reporters etc. The Registry also serves as the channel of communications amongst the
Parties and the Tribunal and observer States.
SUMMARY
OF
THE
TRIBUNALS
DECISIONS
ON
ITS
JURISDICTION
AND ON THE MERITS OF THE PHILIPPINES CLAIMS
1. Background to the Arbitration
The South China Sea Arbitration between the Philippines and China concerned an
application by the Philippines for rulings in respect of four matters concerning the
relationship between the Philippines and China in the South China Sea. First, the
Philippines sought a ruling on the source of the Parties rights and obligations in the
South China Sea and the effect of the United Nations Convention on the Law of the Sea
(Convention) on Chinas claims to historic rights within its so-called nine-dash line.
Second, the Philippines sought a ruling on whether certain maritime features claimed by
both China and the Philippines are properly characterized as islands, rocks, low-tide
elevations or submerged banks under the Convention. The status of these features under
the Convention determines the maritime zones they are capable of generating. Third, the
Philippines sought rulings on whether certain Chinese actions in the South China Sea
have violated the Convention, by interfering with the exercise of the Philippines
sovereign rights and freedoms under the Convention or through construction and fishing
activities that have harmed the marine environment. Finally, the Philippines sought a
ruling that certain actions taken by China, in particular its large-scale land reclamation
and construction of artificial islands in the Spratly Islands since this arbitration was
commenced, have unlawfully aggravated and extended the Parties dispute.
The Chinese Government has adhered to the position of neither accepting nor
participating in these arbitral proceedings. It has reiterated this position in diplomatic
notes, in the Position Paper of the Government of the Peoples Republic of China on the
Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the
Philippines dated 7 December 2014 (Chinas Position Paper), in letters to members of
the Tribunal from the Chinese Ambassador to the Kingdom of the Netherlands, and in
many public statements. The Chinese Government has also made clear that these
statements and documents shall by no means be interpreted as Chinas participation in
the arbitral proceeding in any form.

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Two provisions of the Convention address the situation of a party that objects to the
jurisdiction of a tribunal and declines to participate in the proceedings:
(a) Article 288 of the Convention provides that: In the event of a dispute as to whether a
court or tribunal has jurisdiction, the matter shall be settled by decision of that court or
tribunal.
(b) Article 9 of Annex VII to the Convention provides that:
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to
defend its case, the other party may request the tribunal to continue the proceedings
and to make its award. Absence of a party or failure of a party to defend its case shall not
constitute a bar to the proceedings. Before making its award, the arbitral tribunal must
satisfy itself not only that it has jurisdiction over the dispute but also that the claim is
well founded in fact and law.
Throughout these proceedings, the Tribunal has taken a number of steps to fulfil its duty
to satisfy itself as to whether it has jurisdiction and whether the Philippines claims are
well founded in fact and law. With respect to jurisdiction, the Tribunal decided to treat
Chinas informal communications as equivalent to an objection to jurisdiction, convened
a Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015, questioned the
Philippines both before and during the hearing on matters of jurisdiction, including
potential issues not raised in Chinas informal communications, and issued an Award on
Jurisdiction and Admissibility on 29 October 2015 (the Award on Jurisdiction), deciding
some issues of jurisdiction and deferring others for further consideration in conjunction
with the merits of the Philippines claims. With respect to the merits, the Tribunal sought
to test the accuracy of the Philippines claims by requesting further written submissions
from the Philippines, by convening a hearing on the merits from 24 to 30 November
2015, by questioning the Philippines both before and during the hearing with respect to
its claims, by appointing independent experts to report to the Tribunal on technical
matters, and by obtaining historical records and hydrographic survey data for the South
China Sea from the archives of the United Kingdom Hydrographic Office, the National
Library of France, and the French National Overseas Archives and providing it to the
Parties for comment, along with other relevant materials in the public domain.
2. The Parties Positions
The Philippines made 15 Submissions in these proceedings, requesting the Tribunal to
find that:
(1) Chinas maritime entitlements in the South China Sea, like those of the Philippines,
may not extend beyond those expressly permitted by the United Nations Convention on
the Law of the Sea;
(2) Chinas claims to sovereign rights jurisdiction, and to historic rights, with respect to
the maritime areas of the South China Sea encompassed by the so-called nine-dash
line are contrary to the Convention and without lawful effect to the extent that they
exceed the geographic and substantive limits of Chinas maritime entitlements expressly
permitted by UNCLOS;
(3) Scarborough Shoal generates no entitlement to an exclusive economic zone or
continental shelf;
(4) Mischief Reef, Second Thomas Shoal, and Subi Reef are low-tide elevations that do
not generate entitlement to a territorial sea, exclusive economic zone or continental
shelf, and are not features that are capable of appropriation by occupation or otherwise;
(5) Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and
continental shelf of the Philippines;
(6) Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that
do not generate entitlement to a territorial sea, exclusive economic zone or continental
shelf, but their low-water line may be used to determine the baseline from which the
breadth of the territorial sea of Namyit and Sin Cowe, respectively, is measured;
(7) Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an
exclusive economic zone or continental shelf;
(8) China has unlawfully interfered with the enjoyment and exercise of the sovereign
rights of the Philippines with respect to the living and non-living resources of its exclusive
economic zone and continental shelf;
(9) China has unlawfully failed to prevent its nationals and vessels from exploiting the
living resources in the exclusive economic zone of the Philippines;

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(10) China has unlawfully prevented Philippine fishermen from pursuing their livelihoods
by interfering with traditional fishing activities at Scarborough Shoal;
(11) China has violated its obligations under the Convention to protect and preserve the
marine environment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery
Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef;
(12) Chinas occupation of and construction activities on Mischief Reef
(a) violate the provisions of the Convention concerning artificial islands, installations and
structures;
(b) violate Chinas duties to protect and preserve the marine environment under the
Convention; and
(c) constitute unlawful acts of attempted appropriation in violation of the Convention;
(13) China has breached its obligations under the Convention by operating its law
enforcement vessels in a dangerous manner, causing serious risk of collision to Philippine
vessels navigating in the vicinity of Scarborough Shoal;
(14) Since the commencement of this arbitration in January 2013, China has unlawfully
aggravated and extended the dispute by, among other things:
(a) interfering with the Philippines rights of navigation in the waters at, and adjacent to,
Second Thomas Shoal;
(b) preventing the rotation and resupply of Philippine personnel stationed at Second
Thomas Shoal;
(c) endangering the health and well-being of Philippine personnel stationed at Second
Thomas Shoal; and
(d) conducting dredging, artificial island-building and construction activities at Mischief
Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi
Reef; and
(15) China shall respect the rights and freedoms of the Philippines under the Convention,
shall comply with its duties under the Convention, including those relevant to the
protection and preservation of the marine environment in the South China Sea, and shall
exercise its rights and freedoms in the South China Sea with due regard to those of the
Philippines under the Convention.
With respect to jurisdiction, the Philippines has asked the Tribunal to declare that the
Philippines claims are entirely within its jurisdiction and are fully admissible.
China does not accept and is not participating in this arbitration but stated its position
that the Tribunal does not have jurisdiction over this case. In its Position Paper, China
advanced the following arguments:

The essence of the subject-matter of the arbitration is the territorial sovereignty


over several maritime features in the South China Sea, which is beyond the scope
of the Convention and does not concern the interpretation or application of the
Convention;

China and the Philippines have agreed, through bilateral instruments and the
Declaration on the Conduct of Parties in the South China Sea, to settle their
relevant disputes through negotiations. By unilaterally initiating the present
arbitration, the Philippines has breached its obligation under international law;

Even assuming, arguendo, that the subject-matter of the arbitration were


concerned with the interpretation or application of the Convention, that subjectmatter would constitute an integral part of maritime delimitation between the two
countries, thus falling within the scope of the declaration filed by China in 2006 in
accordance with the Convention, which excludes, inter alia, disputes concerning
maritime delimitation from compulsory arbitration and other compulsory dispute
settlement procedures;

Although China has not made equivalent public statements with respect to the merits of
the majority of the Philippines claims, the Tribunal has sought throughout the
proceedings to ascertain Chinas position on the basis of its contemporaneous public
statements and diplomatic correspondence.

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3. The Tribunals Decisions on the Scope of its Jurisdiction


The Tribunal has addressed the scope of its jurisdiction to consider the Philippines claims
both in its Award on Jurisdiction, to the extent that issues of jurisdiction could be decided
as a preliminary matter, and in its Award of 12 July 2016, to the extent that issues of
jurisdiction were intertwined with the merits of the Philippines claims. The Tribunals
Award of 12 July 2016 also incorporates and reaffirms the decisions on jurisdiction taken
in the Award on Jurisdiction.
For completeness, the Tribunals decisions on jurisdiction in both awards are summarized
here together.
a. Preliminary Matters
In its Award on Jurisdiction, the Tribunal considered a number of preliminary matters with
respect to its jurisdiction. The Tribunal noted that both the Philippines and China are
parties to the Convention and that the Convention does not permit a State to except
itself generally from the mechanism for the resolution of disputes set out in the
Convention. The Tribunal held that Chinas non-participation does not deprive the
Tribunal of jurisdiction and that the Tribunal had been properly constituted pursuant to
the provisions of Annex VII to the Convention, which include a procedure to form a
tribunal even in the absence of one party. Finally, the Tribunal rejected an argument set
out in Chinas Position Paper and held that the mere act of unilaterally initiating an
arbitration cannot constitute an abuse of the Convention.
b. Existence of a Dispute Concerning Interpretation and Application of the
Convention
In its Award on Jurisdiction, the Tribunal considered whether the Parties disputes
concerned the interpretation or application of the Convention, which is a requirement for
resort to the dispute settlement mechanisms of the Convention.
The Tribunal rejected the argument set out in Chinas Position Paper that the Parties
dispute is actually about territorial sovereignty and therefore not a matter concerning the
Convention. The Tribunal accepted that there is a dispute between the Parties concerning
sovereignty over islands in the South China Sea, but held that the matters submitted to
arbitration by the Philippines do not concern sovereignty. The Tribunal considered that it
would not need to implicitly decide sovereignty to address the Philippines Submissions
and that doing so would not advance the sovereignty claims of either Party to islands in
the South China Sea.
The Tribunal also rejected the argument set out in Chinas Position Paper that the Parties
dispute is actually about maritime boundary delimitation and therefore excluded from
dispute settlement by Article 298 of the Convention and a declaration that China made
on 25 August 2006 pursuant to that Article. The Tribunal noted that a dispute concerning
whether a State has an entitlement to a maritime zone is a distinct matter from the
delimitation of maritime zones in an area in which they overlap. The Tribunal noted that
entitlements, together with a wide variety of other issues, are commonly considered in a
boundary delimitation, but can also arise in other contexts. The Tribunal held that it does
not follow that a dispute over each of these issues is necessarily a dispute over boundary
delimitation.
Finally, the Tribunal held that each of the Philippines Submissions reflected a dispute
concerning the Convention. In doing so, the Tribunal emphasized (a) that a dispute
concerning the interaction between the Convention and other rights (including any
Chinese historic rights) is a dispute concerning the Convention and (b) that where
China has not clearly stated its position, the existence of a dispute may be inferred from
the conduct of a State or from silence and is a matter to be determined objectively.
c. Involvement of Indispensable Third-Parties
In its Award on Jurisdiction, the Tribunal considered whether the absence from this
arbitration of other States that have made claims to the islands of the South China Sea
would be a bar to the Tribunals jurisdiction. The Tribunal noted that the rights of other
States would not form the very subject-matter of the decision, the standard for a thirdparty to be indispensable. The Tribunal further noted that in December 2014, Viet Nam
had submitted a statement to the Tribunal, in which Viet Nam asserted that it has no
doubt that the Tribunal has jurisdiction in these proceedings. The Tribunal also noted
that Viet Nam, Malaysia, and Indonesia had attended the hearing on jurisdiction as

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observers, without any State raising the argument that its participation was
indispensable.
In its Award of 12 July 2016, the Tribunal noted that it had received a communication
from Malaysia on 23 June 2016, recalling Malaysias claims in the South China Sea. The
Tribunal compared its decisions on the merits of the Philippines Submissions with the
rights claimed by Malaysia and reaffirmed its decision that Malaysia is not an
indispensable party and that Malaysias interests in the South China Sea do not prevent
the Tribunal from addressing the Philippines Submissions.
d. Preconditions to Jurisdiction
In its Award on Jurisdiction, the Tribunal considered the applicability of Articles 281 and
282 of the Convention, which may prevent a State from making use of the mechanisms
under the Convention if they have already agreed to another means of dispute
resolution.
The Tribunal rejected the argument set out in Chinas Position Paper that the 2002 China
ASEAN Declaration on the Conduct of Parties in the South China Sea prevented the
Philippines from initiating arbitration. The Tribunal held that the Declaration is a political
agreement and not legally binding, does not provide a mechanism for binding
settlement, does not exclude other means of dispute settlement, and therefore does not
restrict the Tribunals jurisdiction under Articles 281 or 282. The Tribunal also considered
the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological
Diversity, and a series of joint statements issued by the Philippines and China referring to
the resolution of disputes through negotiations and concluded that none of these
instruments constitute an agreement that would prevent the Philippines from bringing its
claims to arbitration.
The Tribunal further held that the Parties had exchanged views regarding the settlement
of their disputes, as required by Article 283 of the Convention, before the Philippines
initiated the arbitration. The Tribunal concluded that this requirement was met in the
record of diplomatic communications between the Philippines and China, in which the
Philippines expressed a clear preference for multilateral negotiations involving the other
States surrounding the South China Sea, while China insisted that only bilateral talks
could be considered.
e. Exceptions and Limitations to Jurisdiction
In its Award of 12 July 2016, the Tribunal considered whether the Philippines Submissions
concerning Chinese historic rights and the nine-dash line were affected by the exception
from jurisdiction for disputes concerning historic title in Article 298 of the Convention.
The Tribunal reviewed the meaning of historic title in the law of the sea and held that
this refers to claims of historic sovereignty over bays and other near-shore waters.
Reviewing Chinas claims and conduct in the South China Sea, the Tribunal concluded
that China claims historic rights to resources within the nine-dash line, but does not
claim historic title over the waters of the South China Sea. Accordingly, the Tribunal
concluded that it had jurisdiction to consider the Philippines claims concerning historic
rights and, as between the Philippines and China, the nine-dash line.
In its Award of 12 July 2016, the Tribunal also considered whether the Philippines
Submissions were affected by the exception from jurisdiction in Article 298 for disputes
concerning sea boundary delimitation. The Tribunal had already found in its Award on
Jurisdiction that the Philippines Submissions do not concern boundary delimitation as
such, but noted that several of the Philippines Submissions were dependent on certain
areas forming part of the Philippines exclusive economic zone. The Tribunal held that it
could only address such submissions if there was no possibility that China could have an
entitlement to an exclusive economic zone overlapping that of the Philippines and
deferred a final decision on its jurisdiction. In its Award of 12 July 2016, the Tribunal
reviewed evidence about the reefs and islands claimed by China in the South China Sea
and concluded that none is capable of generating an entitlement to an exclusive
economic zone. Because China has no possible entitlement to an exclusive economic
zone overlapping that of the Philippines in the Spratly Islands, the Tribunal held that the
Philippines submissions were not dependent on a prior delimitation of a boundary.
In its Award of 12 July 2016, the Tribunal also considered whether the Philippines
Submissions were affected by the exception from jurisdiction in Article 298 for disputes
concerning law enforcement activities in the exclusive economic zone. The Tribunal

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recalled that the exception in Article 298 would apply only if the Philippines Submissions
related to law enforcement activities in Chinas exclusive economic zone. Because,
however, the Philippines Submissions related to events in the Philippines own exclusive
economic zone or in the territorial sea, the Tribunal concluded that Article 298 did not
pose an obstacle to its jurisdiction.
Lastly, in its Award of 12 July 2016, the Tribunal considered whether the Philippines
submissions were affected by the exception from jurisdiction in Article 298 for disputes
concerning military activities. The Tribunal considered that the stand-off between
Philippine marines on Second Thomas Shoal and Chinese naval and law enforcement
vessels constituted military activities and concluded that it lacked jurisdiction over the
Philippines Submission No. 14(a)-(c). The Tribunal also considered whether Chinas land
reclamation and construction of artificial islands at seven features in the Spratly Islands
constituted military activities, but noted that China had repeatedly emphasized the nonmilitary nature of its actions and had stated at the highest level that it would not
militarize its presence in the Spratlys. The Tribunal decided that it would not deem
activities to be military in nature when China itself had repeatedly affirmed the opposite.
Accordingly, the Tribunal concluded that Article 298 did not pose an obstacle to its
jurisdiction.
4. The Tribunals Decisions on the Merits of the Philippines Claims
a. The Nine-Dash Line and Chinas Claim to Historic Rights in the Maritime
Areas of the South China Sea
In its Award of 12 July 2016, the Tribunal considered the implications of Chinas ninedash line and whether China has historic rights to resources in the South China Sea
beyond the limits of the maritime zones that it is entitled to pursuant to the Convention.
The Tribunal examined the history of the Convention and its provisions concerning
maritime zones and concluded that the Convention was intended to comprehensively
allocate the rights of States to maritime areas. The Tribunal noted that the question of
pre-existing rights to resources (in particular fishing resources) was carefully considered
during the negotiations on the creation of the exclusive economic zone and that a
number of States wished to preserve historic fishing rights in the new zone. This position
was rejected, however, and the final text of the Convention gives other States only a
limited right of access to fisheries in the exclusive economic zone (in the event the
coastal State cannot harvest the full allowable catch) and no rights to petroleum or
mineral resources. The Tribunal found that Chinas claim to historic rights to resources
was incompatible with the detailed allocation of rights and maritime zones in the
Convention and concluded that, to the extent China had historic rights to resources in the
waters of the South China Sea, such rights were extinguished by the entry into force of
the Convention to the extent they were incompatible with the Conventions system of
maritime zones.
The Tribunal also examined the historical record to determine whether China actually had
historic rights to resources in the South China Sea prior to the entry into force of the
Convention. The Tribunal noted that there is evidence that Chinese navigators and
fishermen, as well as those of other States, had historically made use of the islands in the
South China Sea, although the Tribunal emphasized that it was not empowered to decide
the question of sovereignty over the islands. However, the Tribunal considered that prior
to the Convention, the waters of the South China Sea beyond the territorial sea were
legally part of the high seas, in which vessels from any State could freely navigate and
fish. Accordingly, the Tribunal concluded that historical navigation and fishing by China in
the waters of the South China Sea represented the exercise of high seas freedoms, rather
than a historic right, and that there was no evidence that China had historically exercised
exclusive control over the waters of the South China Sea or prevented other States from
exploiting their resources.
Accordingly, the Tribunal concluded that, as between the Philippines and China, there
was no legal basis for China to claim historic rights to resources, in excess of the rights
provided for by the Convention, within the sea areas falling within the nine-dash line.
b. The Status of Features in the South China Sea
In its Award of 12 July 2016, the Tribunal considered the status of features in the South
China Sea and the entitlements to maritime areas that China could potentially claim
pursuant to the Convention.

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The Tribunal first undertook a technical evaluation as to whether certain coral reefs
claimed by China are or are not above water at high tide. Under Articles 13 and 121 of
the Convention, features that are above water at high tide generate an entitlement to at
least a 12 nautical mile territorial sea, whereas features that are submerged at high tide
generate no entitlement to maritime zones. The Tribunal noted that many of the reefs in
the South China Sea have been heavily modified by recent land reclamation and
construction and recalled that the Convention classifies features on the basis of their
natural condition. The Tribunal appointed an expert hydrographer to assist it in
evaluating the Philippines technical evidence and relied heavily on archival materials
and historical hydrographic surveys in evaluating the features. The Tribunal agreed with
the Philippines that Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross
Reef are high-tide features and that Subi Reef, Hughes Reef, Mischief Reef, and Second
Thomas Shoal were submerged at high tide in their natural condition. However, the
Tribunal disagreed with the Philippines regarding the status of Gaven Reef (North) and
McKennan Reef and concluded that both are high tide features.
The Tribunal then considered whether any of the features claimed by China could
generate an entitlement to maritime zones beyond 12 nautical miles. Under Article 121
of the Convention, islands generate an entitlement to an exclusive economic zone of 200
nautical miles and to a continental shelf, but [r]ocks which cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone or
continental shelf. The Tribunal noted that this provision was closely linked to the
expansion of coastal State jurisdiction with the creation of the exclusive economic zone
and was intended to prevent insignificant features from generating large entitlements to
maritime zones that would infringe on the entitlements of inhabited territory or on the
high seas and the area of the seabed reserved for the common heritage of mankind. The
Tribunal interpreted Article 121 and concluded that the entitlements of a feature depend
on (a) the objective capacity of a feature, (b) in its natural condition, to sustain either (c)
a stable community of people or (d) economic activity that is neither dependent on
outside resources nor purely extractive in nature.
The Tribunal noted that many of the features in the Spratly Islands are currently
controlled by one or another of the littoral States, which have constructed installations
and maintain personnel there. The Tribunal considered these modern presences to be
dependent on outside resources and support and noted that many of the features have
been modified to improve their habitability, including through land reclamation and the
construction of infrastructure such as desalination plants. The Tribunal concluded that the
current presence of official personnel on many of the features does not establish their
capacity, in their natural condition, to sustain a stable community of people and
considered that historical evidence of habitation or economic life was more relevant to
the objective capacity of the features. Examining the historical record, the Tribunal noted
that the Spratly Islands were historically used by small groups of fishermen from China,
as well as other States, and that several Japanese fishing and guano mining enterprises
were attempted in the 1920s and 1930s. The Tribunal concluded that temporary use of
the features by fishermen did not amount to inhabitation by a stable community and that
all of the historical economic activity had been extractive in nature. Accordingly, the
Tribunal concluded that all of the high-tide features in the Spratly Islands (including, for
example, Itu Aba, Thitu, West York Island, Spratly Island, North-East Cay, South-West Cay)
are legally rocks that do not generate an exclusive economic zone or continental shelf.
The Tribunal also held that the Convention does not provide for a group of islands such as
the Spratly Islands to generate maritime zones collectively as a unit.
c. Chinese Activities in the South China Sea
In its Award of 12 July 2016, the Tribunal considered the lawfulness under the Convention
of various Chinese actions in the South China Sea.
Having found that Mischief Reef, Second Thomas Shoal and Reed Bank are submerged at
high tide, form part of the exclusive economic zone and continental shelf of the
Philippines, and are not overlapped by any possible entitlement of China, the Tribunal
concluded that the Convention is clear in allocating sovereign rights to the Philippines
with respect to sea areas in its exclusive economic zone. The Tribunal found as a matter
of fact that China had (a) interfered with Philippine petroleum exploration at Reed Bank,
(b) purported to prohibit fishing by Philippine vessels within the Philippines exclusive

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economic zone, (c) protected and failed to prevent Chinese fishermen from fishing within
the Philippines exclusive economic zone at Mischief Reef and Second Thomas Shoal, and
(d) constructed installations and artificial islands at Mischief Reef without the
authorization of the Philippines. The Tribunal therefore concluded that China had violated
the Philippines sovereign rights with respect to its exclusive economic zone and
continental shelf.
The Tribunal next examined traditional fishing at Scarborough Shoal and concluded that
fishermen from the Philippines, as well as fishermen from China and other countries, had
long fished at the Shoal and had traditional fishing rights in the area. Because
Scarborough Shoal is above water at high tide, it generates an entitlement to a territorial
sea, its surrounding waters do not form part of the exclusive economic zone, and
traditional fishing rights were not extinguished by the Convention. Although the Tribunal
emphasized that it was not deciding sovereignty over Scarborough Shoal, it found that
China had violated its duty to respect to the traditional fishing rights of Philippine
fishermen by halting access to the Shoal after May 2012. The Tribunal noted, however,
that it would reach the same conclusion with respect to the traditional fishing rights of
Chinese fishermen if the Philippines were to prevent fishing by Chinese nationals at
Scarborough Shoal.
The Tribunal also considered the effect of Chinas actions on the marine environment. In
doing so, the Tribunal was assisted by three independent experts on coral reef biology
who were appointed to assist it in evaluating the available scientific evidence and the
Philippines expert reports. The Tribunal found that Chinas recent large scale land
reclamation and construction of artificial islands at seven features in the Spratly Islands
has caused severe harm to the coral reef environment and that China has violated its
obligation under Articles 192 and 194 of the Convention to preserve and protect the
marine environment with respect to fragile ecosystems and the habitat of depleted,
threatened, or endangered species. The Tribunal also found that Chinese fishermen have
engaged in the harvesting of endangered sea turtles, coral, and giant clams on a
substantial scale in the South China Sea, using methods that inflict severe damage on
the coral reef environment. The Tribunal found that Chinese authorities were aware of
these activities and failed to fulfill their due diligence obligations under the Convention to
stop them.
Finally, the Tribunal considered the lawfulness of the conduct of Chinese law enforcement
vessels at Scarborough Shoal on two occasions in April and May 2012 when Chinese
vessels had sought to physically obstruct Philippine vessels from approaching or gaining
entrance to the Shoal. In doing so, the Tribunal was assisted by an independent expert on
navigational safety who was appointed to assist it in reviewing the written reports
provided by the officers of the Philippine vessels and the expert evidence on navigational
safety provided by the Philippines. The Tribunal found that Chinese law enforcement
vessels had repeatedly approached the Philippine vessels at high speed and sought to
cross ahead of them at close distances, creating serious risk of collision and danger to
Philippine ships and personnel. The Tribunal concluded that China had breached its
obligations under the Convention on the International Regulations for Preventing
Collisions at Sea, 1972, and Article 94 the Convention concerning maritime safety.
d. Aggravation of the Dispute between the Parties
In its Award of 12 July 2016, the Tribunal considered whether Chinas recent large-scale
land reclamation and construction of artificial islands at seven features in the Spratly
Islands since the commencement of the arbitration had aggravated the dispute between
the Parties. The Tribunal recalled that there exists a duty on parties engaged in a dispute
settlement procedure to refrain from aggravating or extending the dispute or disputes at
issue during the pendency of the settlement process. The Tribunal noted that China has
(a) built a large artificial island on Mischief Reef, a low-tide elevation located in the
exclusive economic zone of the Philippines; (b) caused permanent, irreparable harm to
the coral reef ecosystem and (c) permanently destroyed evidence of the natural
condition of the features in question. The Tribunal concluded that China had violated its
obligations to refrain from aggravating or extending the Parties disputes during the
pendency of the settlement process.
e. Future Conduct of the Parties

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Finally, the Tribunal considered the Philippines request for a declaration that, going
forward, China shall respect the rights and freedoms of the Philippines and comply with
its duties under the Convention. In this respect, the Tribunal noted that both the
Philippines and China have repeatedly accepted that the Convention and general
obligations of good faith define and regulate their conduct. The Tribunal considered that
the root of the disputes at issue in this arbitration lies not in any intention on the part of
China or the Philippines to infringe on the legal rights of the other, but rather in
fundamentally different understandings of their respective rights under the Convention in
the waters of the South China Sea. The Tribunal recalled that it is a fundamental principle
of international law that bad faith is not presumed and noted that Article 11 of Annex VII
provides that the award . . . shall be complied with by the parties to the dispute. The
Tribunal therefore considered that no further declaration was necessary.

Key points of arbitral tribunals verdict on PH-China


dispute
By: Matikas Santos / @MSantosINQINQUIRER.net / 05:34 PM July 12, 2016
Demonstrators, police, and media gather outside the Peace Palace in The Hague,
Netherlands, on Tuesday, July 12, 2016, ahead of a ruling by the Permanent Court of
Arbitration (PCA) on the dispute between China and the Philippines over the South China
Sea. China has intensified the drumbeat of its opposition to an international tribunal's
ruling expected Tuesday that could threaten its expansive claims in the South China Sea.
(AP Photo/Mike Corder)
Demonstrators, police, and media gather outside the Peace Palace in The Hague,
Netherlands, on Tuesday, July 12, 2016, ahead of a ruling by the Permanent Court of
Arbitration (PCA) on the dispute between China and the Philippines over the South China

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Sea. China has intensified the drumbeat of its opposition to an international tribunals
ruling expected Tuesday that could threaten its expansive claims in the South China Sea.
(AP Photo/Mike Corder)
The international Arbitral Tribunal on Tuesday issued its award on the arbitration case
between Philippines and China over the West Philippine Sea (South China Sea) dispute.
In a 501-page award, the Tribunal decided in favor of the Philippines and said that China
does not have historic rights to the South China Sea and that their nine-dash line claim
has no legal basis.
READ: Key points of arbitral tribunals verdict on PH-China dispute
Below are five key points included in the summary statement released to the media
(1)Historic Rights and the Nine-Dash Line:
The Tribunal concluded that, to the extent China had historic rights to resources in the
waters of the South China Sea, such rights were extinguished to the extent they were
incompatible with the exclusive economic zones provided for in the Convention.
The Tribunal also noted that, although 2 Chinese navigators and fishermen, as well as
those of other States, had historically made use of the islands in the South China Sea,
there was no evidence that China had historically exercised exclusive control over the
waters or their resources.
The Tribunal concluded that there was no legal basis for China to claim historic rights to
resources within the sea areas falling within the nine-dash line.
(2)Status of Features:
The Tribunal noted that the reefs have been heavily modified by land reclamation and
construction, recalled that the Convention classifies features on their natural condition,
and relied on historical materials in evaluating the features.
The Tribunal found historical evidence to be more relevant and noted that the Spratly
Islands were historically used by small groups of fishermen and that several Japanese
fishing and guano mining enterprises were attempted.
The Tribunal concluded that such transient use does not constitute inhabitation by a
stable community and that all of the historical economic activity had been extractive.
Accordingly, the Tribunal concluded that none of the Spratly Islands is capable of
generating extended maritime zones.
The Tribunal also held that the Spratly Islands cannot generate maritime zones
collectively as a unit. Having found that none of the features claimed by China was
capable of generating an exclusive economic zone, the Tribunal found that it could
without delimiting a boundarydeclare that certain sea areas are within the exclusive
economic zone of the Philippines, because those areas are not overlapped by any
possible entitlement of China.
(3)Lawfulness of Chinese Actions:
Having found that certain areas are within the exclusive economic zone of the
Philippines, the Tribunal found that China had violated the Philippines sovereign rights in
its exclusive economic zone by (a) interfering with Philippine fishing and petroleum
exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen
from fishing in the zone.

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The Tribunal also held that fishermen from the Philippines (like those from China) had
traditional fishing rights at Scarborough Shoal and that China had interfered with these
rights in restricting access.
The Tribunal further held that Chinese law enforcement vessels had unlawfully created a
serious risk of collision when they physically obstructed Philippine vessels.
(4)Harm to Marine Environment:
The Tribunal considered the effect on the marine environment of Chinas recent largescale land reclamation and construction of artificial islands at seven features in the
Spratly Islands and found that China had caused severe harm to the coral reef
environment and violated its obligation to preserve and protect fragile ecosystems and
the habitat of depleted, threatened, or endangered species.
The Tribunal also found that Chinese authorities were aware that Chinese fishermen have
harvested endangered sea turtles, coral, and giant clams on a substantial scale in the
South China Sea (using methods that inflict severe damage on the coral reef
environment) and had not fulfilled their obligations to stop such activities
(5)Aggravation of Dispute:
Finally, the Tribunal considered whether Chinas actions since the commencement of the
arbitration had aggravated the dispute between the Parties.
The Tribunal found that it lacked jurisdiction to consider the implications of a stand-off
between Philippine marines and Chinese naval and law enforcement vessels at Second
Thomas Shoal, holding that this dispute involved military activities and was therefore
excluded from compulsory settlement.
The Tribunal found, however, that Chinas recent large-scale land reclamation and
construction of artificial islands was incompatible with the obligations on a State during
dispute resolution proceedings, insofar as China has inflicted irreparable harm to the
marine environment, built a large artificial island in the Philippines exclusive economic
zone, and destroyed evidence of the natural condition of features in the South China Sea
that formed part of the Parties dispute.
BACKSTORY: #InquirerSeven FAQ about the Philippines vs. China arbitration case
The Convention
Under the United Nations Convention on the Law of the Sea (UNCLOS) a coastal state
needs to have land before they can claim rights to the sea. The international treaty has
been signed and ratified by both the Philippines and China.
You need to have land before you can have rights to the sea. Its as simple as that.You
cannot just have rights to the sea without owning land, former Solicitor General Francis
Jardeleza said in a forum at the University of the Philippines (UP) Law Center in 2014,
citing the basic principle of UNCLOS.
China asserts it has indisputable sovereignty and historic rights to over two-thirds of
the 3.5 million square kilometers South China Sea using its nine-dash line claim that
overlaps with the UNCLOS-mandated 200-nautical-mile Exclusive Economic Zone (EEZ).
The line, encircling an area roughly the size of Mexico, overlaps territories claimed by the
Philippines, Vietnam, Malaysia, Brunei and Taiwan. China argues that its historic rights
justify the line. But the Philippines insists that these rights cannot be used to define sea
borders.

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The Philippines says since the South China Sea is mostly sea, there is no land mass or
clumps of islands and rocks there large enough to generate sea borders that will span the
over 2 million square kilometers China is claiming with its nine-dash line.
In recent months, China has conducted massive land reclamation activities turning
submerged reefs into artificial islands capable of hosting military equipment and
structures.
Unclos, however, does not recognize artificial islands and states that these are not
entitled to a 12 nautical mile territorial sea nor a 200 nm eez.

PART II
TERRITORIAL SEA AND CONTIGUOUS ZONE
SECTION 1. GENERAL PROVISIONS

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Article2
Legal status of the territorial sea, of the air space
over the territorial sea and of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and,
in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described
as the territorial sea.cralaw
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.cralaw
3. The sovereignty over the territorial sea is exercised subject to this Convention and to other
rules of international law.
SECTION 2. LIMITS OF THE TERRITORIAL SEA
Article3
Breadth of the territorial sea
Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding
12 nautical miles, measured from baselines determined in accordance with this Convention.
Article4
Outer limit of the territorial sea
The outer limit of the territorial sea is the line every point of which is at a distance from the
nearest point of the baseline equal to the breadth of the territorial sea.
Article5
Normal baseline
Except where otherwise provided in this Convention, the normal baseline for measuring the
breadth of the territorial sea is the low-water line along the coast as marked on large-scale
charts officially recognized by the coastal State.
Article6
Reefs
In the case of islands situated on atolls or of islands having fringing reefs, the baseline for
measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown
by the appropriate symbol on charts officially recognized by the coastal State.
Article7
Straight baselines
1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, the method of straight baselines joining
appropriate points may be employed in drawing the baseline from which the breadth of the
territorial sea is measured.cralaw
2. Where because of the presence of a delta and other natural conditions the coastline is highly
unstable, the appropriate points may be selected along the furthest seaward extent of the lowwater line and, notwithstanding subsequent regression of the low-water line, the straight
baselines shall remain effective until changed by the coastal State in accordance with this
Convention.cralaw
3. The drawing of straight baselines must not depart to any appreciable extent from the general
direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked
to the land domain to be subject to the regime of internal waters.cralaw
4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or
similar installations which are permanently above sea level have been built on them or except in
instances where the drawing of baselines to and from such elevations has received general

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international recognition.cralaw
5. Where the method of straight baselines is applicable under paragraph 1, account may be
taken, in determining particular baselines, of economic interests peculiar to the region
concerned, the reality and the importance of which are clearly evidenced by long usage.cralaw
6. The system of straight baselines may not be applied by a State in such a manner as to cut off
the territorial sea of another State from the high seas or an exclusive economic zone.
Article8
Internal waters
1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea
form part of the internal waters of the State.cralaw
2. Where the establishment of a straight baseline in accordance with the method set forth in
article 7 has the effect of enclosing as internal waters areas which had not previously been
considered as such, a right of innocent passage as provided in this Convention shall exist in
those waters.
Article9
Mouths of rivers
If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the
river between points on the low-water line of its banks.
Article10
Bays
1. This article relates only to bays the coasts of which belong to a single State.cralaw
2. For the purposes of this Convention, a bay is a well-marked indentation whose penetration is
in such proportion to the width of its mouth as to contain land-locked waters and constitute
more than a mere curvature of the coast. An indentation shall not, however, be regarded as a
bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line
drawn across the mouth of that indentation.cralaw
3. For the purpose of measurement, the area of an indentation is that lying between the lowwater mark around the shore of the indentation and a line joining the low-water mark of its
natural entrance points. Where, because of the presence of islands, an indentation has more
than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths
of the lines across the different mouths. Islands within an indentation shall be included as if they
were part of the water area of the indentation.cralaw
4. If the distance between the low-water marks of the natural entrance points of a bay does not
exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and
the waters enclosed thereby shall be considered as internal waters.cralaw
5. Where the distance between the low-water marks of the natural entrance points of a bay
exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay
in such a manner as to enclose the maximum area of water that is possible with a line of that
length.cralaw
6. The foregoing provisions do not apply to so-called "historic" bays, or in any case where the
system of straight baselines provided for in article 7 is applied.
Article11
Ports
For the purpose of delimiting the territorial sea, the outermost permanent harbour works which
form an integral part of the harbour system are regarded as forming part of the coast. Off-shore
installations and artificial islands shall not be considered as permanent harbour works.

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Article12
Roadsteads
Roadsteads which are normally used for the loading, unloading and anchoring of ships, and
which would otherwise be situated wholly or partly outside the outer limit of the territorial sea,
are included in the territorial sea.
Article13
Low-tide elevations
1. A low-tide elevation is a naturally formed area of land which is surrounded by and above
water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or
partly at a distance not exceeding the breadth of the territorial sea from the mainland or an
island, the low-water line on that elevation may be used as the baseline for measuring the
breadth of the territorial sea.cralaw
2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the
territorial sea from the mainland or an island, it has no territorial sea of its own.
Article14
Combination of methods for determining baselines
The coastal State may determine baselines in turn by any of the methods provided for in the
foregoing articles to suit different conditions.
Article15
Delimitation of the territorial sea between States
with opposite or adjacent coasts
Where the coasts of two States are opposite or adjacent to each other, neither of the two States
is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond
the median line every point of which is equidistant from the nearest points on the baselines
from which the breadth of the territorial seas of each of the two States is measured. The above
provision does not apply, however, where it is necessary by reason of historic title or other
special circumstances to delimit the territorial seas of the two States in a way which is at
variance therewith.
Article16
Charts and lists of geographical coordinates
1. The baselines for measuring the breadth of the territorial sea determined in accordance with
articles 7, 9 and 10, or the limits derived therefrom, and the lines of delimitation drawn in
accordance with articles 12 and 15 shall be shown on charts of a scale or scales adequate for
ascertaining their position. Alternatively, a list of geographical coordinates of points, specifying
the geodetic datum, may be substituted.cralaw
2. The coastal State shall give due publicity to such charts or lists of geographical coordinates
and shall deposit a copy of each such chart or list with the Secretary-General of the United
Nations.
SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA
SUBSECTION A. RULES APPLICABLE TO ALL SHIPS
Article17
Right of innocent passage
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea.
Article18
Meaning of passage

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1. Passage means navigation through the territorial sea for the purpose of:chanrobles virtual law
library
(a) traversing that sea without entering internal waters or calling at a roadstead or port facility
outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping and
anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered
necessary by force majeure or distress or for the purpose of rendering assistance to persons,
ships or aircraft in danger or distress.
Article19
Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the
coastal State. Such passage shall take place in conformity with this Convention and with other
rules of international law.cralaw
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or
security of the coastal State if in the territorial sea it engages in any of the following
activities:chanrobles virtual law library
(a) any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United Nations;chanroblesvirtuallawlibrary
(b) any exercise or practice with weapons of any kind;chanroblesvirtuallawlibrary
(c) any act aimed at collecting information to the prejudice of the defence or security of the
coastal State;chanroblesvirtuallawlibrary
(d) any act of propaganda aimed at affecting the defence or security of the coastal
State;chanroblesvirtuallawlibrary
(e) the launching, landing or taking on board of any aircraft;chanroblesvirtuallawlibrary
(f) the launching, landing or taking on board of any military device;chanroblesvirtuallawlibrary
(g) the loading or unloading of any commodity, currency or person contrary to the customs,
fiscal,
immigration
or
sanitary
laws
and
regulations
of
the
coastal
State;chanroblesvirtuallawlibrary
(h) any act of wilful and serious pollution contrary to this Convention;chanroblesvirtuallawlibrary
(i) any fishing activities;chanroblesvirtuallawlibrary
(j) the carrying out of research or survey activities;chanroblesvirtuallawlibrary
(k) any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State;chanroblesvirtuallawlibrary
(l) any other activity not having a direct bearing on passage.
Article20
Submarines and other underwater vehicles
In the territorial sea, submarines and other underwater vehicles are required to navigate on the
surface and to show their flag.
Article21
Laws and regulations of the coastal State relating to innocent passage
1. The coastal State may adopt laws and regulations, in conformity with the provisions of this
Convention and other rules of international law, relating to innocent passage through the
territorial sea, in respect of all or any of the following:chanrobles virtual law library
(a) the safety of navigation and the regulation of maritime traffic;chanroblesvirtuallawlibrary

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(b) the protection of navigational aids and facilities and other facilities or
installations;chanroblesvirtuallawlibrary
(c) the protection of cables and pipelines;chanroblesvirtuallawlibrary
(d) the conservation of the living resources of the sea;chanroblesvirtuallawlibrary
(e) the prevention of infringement of the fisheries laws and regulations of the coastal
State;chanroblesvirtuallawlibrary
(f) the preservation of the environment of the coastal State and the prevention, reduction and
control of pollution thereof;chanroblesvirtuallawlibrary
(g) marine scientific research and hydrographic surveys;chanroblesvirtuallawlibrary
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or equipment
of foreign ships unless they are giving effect to generally accepted international rules or
standards.cralaw
3. The coastal State shall give due publicity to all such laws and regulations.cralaw
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply
with all such laws and regulations and all generally accepted international regulations relating to
the prevention of collisions at sea.
Article22
Sea lanes and traffic separation schemes in the territorial sea
1. The coastal State may, where necessary having regard to the safety of navigation, require
foreign ships exercising the right of innocent passage through its territorial sea to use such sea
lanes and traffic separation schemes as it may designate or prescribe for the regulation of the
passage of ships.cralaw
2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently
dangerous or noxious substances or materials may be required to confine their passage to such
sea lanes.cralaw
3. In the designation of sea lanes and the prescription of traffic separation schemes under this
article, the coastal State shall take into account:chanrobles virtual law library
(a)
the
recommendations
of
the
competent
international
organization;chanroblesvirtuallawlibrary
(b) any channels customarily used for international navigation;chanroblesvirtuallawlibrary
(c) the special characteristics of particular ships and channels; and
(d) the density of traffic.
4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on
charts to which due publicity shall be given.
Article23
Foreign nuclear-powered ships and ships carrying nuclear
or other inherently dangerous or noxious substances
Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or
noxious substances shall, when exercising the right of innocent passage through the territorial
sea, carry documents and observe special precautionary measures established for such ships by
international agreements.
Article24
Duties of the coastal State
1. The coastal State shall not hamper the innocent passage of foreign ships through the

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territorial sea except in accordance with this Convention. In particular, in the application of this
Convention or of any laws or regulations adopted in conformity with this Convention, the coastal
State shall not:chanrobles virtual law library
(a) impose requirements on foreign ships which have the practical effect of denying or impairing
the right of innocent passage; or
(b) discriminate in form or in fact against the ships of any State or against ships carrying
cargoes to, from or on behalf of any State.
2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has
knowledge, within its territorial sea.
Article25
Rights of protection of the coastal State
1. The coastal State may take the necessary steps in its territorial sea to prevent passage which
is not innocent.cralaw
2. In the case of ships proceeding to internal waters or a call at a port facility outside internal
waters, the coastal State also has the right to take the necessary steps to prevent any breach of
the conditions to which admission of those ships to internal waters or such a call is
subject.cralaw
3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such
suspension is essential for the protection of its security, including weapons exercises. Such
suspension shall take effect only after having been duly published.
Article26
Charges which may be levied upon foreign ships
1. No charge may be levied upon foreign ships by reason only of their passage through the
territorial sea.cralaw
2. Charges may be levied upon a foreign ship passing through the territorial sea as payment
only for specific services rendered to the ship. These charges shall be levied without
discrimination.
SUBSECTION B. RULES APPLICABLE TO
MERCHANT SHIPS AND GOVERNMENT SHIPS
OPERATED FOR COMMERCIAL PURPOSES
Article27
Criminal jurisdiction on board a foreign ship
1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship
passing through the territorial sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage, save only in the
following cases:chanrobles virtual law library
(a) if the consequences of the crime extend to the coastal State;chanroblesvirtuallawlibrary
(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial
sea;chanroblesvirtuallawlibrary
(c) if the assistance of the local authorities has been requested by the master of the ship or by a
diplomatic agent or consular officer of the flag State; or
(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
2. The above provisions do not affect the right of the coastal State to take any steps authorized
by its laws for the purpose of an arrest or investigation on board a foreign ship passing through

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the territorial sea after leaving internal waters.cralaw


3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so
requests, notify a diplomatic agent or consular officer of the flag State before taking any steps,
and shall facilitate contact between such agent or officer and the ship's crew. In cases of
emergency this notification may be communicated while the measures are being taken.cralaw
4. In considering whether or in what manner an arrest should be made, the local authorities
shall have due regard to the interests of navigation.cralaw
5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in
accordance with Part V, the coastal State may not take any steps on board a foreign ship
passing through the territorial sea to arrest any person or to conduct any investigation in
connection with any crime committed before the ship entered the territorial sea, if the ship,
proceeding from a foreign port, is only passing through the territorial sea without entering
internal waters.
Article28
Civil jurisdiction in relation to foreign ships
1. The coastal State should not stop or divert a foreign ship passing through the territorial sea
for the purpose of exercising civil jurisdiction in relation to a person on board the ship.cralaw
2. The coastal State may not levy execution against or arrest the ship for the purpose of any
civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the
ship itself in the course or for the purpose of its voyage through the waters of the coastal
State.cralaw
3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws,
to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship
lying in the territorial sea, or passing through the territorial sea after leaving internal waters.
SUBSECTION C. RULES APPLICABLE TO
WARSHIPS AND OTHER GOVERNMENT SHIPS
OPERATED FOR NON-COMMERCIAL PURPOSES
Article29
Definition of warships
For the purposes of this Convention, "warship" means a ship belonging to the armed forces of a
State bearing the external marks distinguishing such ships of its nationality, under the
command of an officer duly commissioned by the government of the State and whose name
appears in the appropriate service list or its equivalent, and manned by a crew which is under
regular armed forces discipline.
Article30
Non-compliance by warships with the laws and regulations
of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which
is made to it, the coastal State may require it to leave the territorial sea immediately.
Article31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for noncommercial purposes with the laws and regulations of the coastal State concerning passage

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through the territorial sea or with the provisions of this Convention or other rules of international
law.
Article32
Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for noncommercial purposes.
SECTION 4. CONTIGUOUS ZONE
Article33
Contiguous zone
1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State
may exercise the control necessary to:chanrobles virtual law library
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;chanroblesvirtuallawlibrary
(b) punish infringement of the above laws and regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured.

PART III
STRAITS USED FOR INTERNATIONAL NAVIGATION
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SECTION 1. GENERAL PROVISIONS


Article34
Legal status of waters forming straits used for international navigation
1. The regime of passage through straits used for international navigation established in this
Part shall not in other respects affect the legal status of the waters forming such straits or the
exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters
and their air space, bed and subsoil.
2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this
Part and to other rules of international law.
Article35
Scope of this Part
Nothing in this Part affects:
(a) any areas of internal waters within a strait, except where the establishment of a straight
baseline in accordance with the method set forth in article 7 has the effect of enclosing as
internal waters areas which had not previously been considered as such;
(b) the legal status of the waters beyond the territorial seas of States bordering straits as
exclusive economic zones or high seas; or
(c) the legal regime in straits in which passage is regulated in whole or in part by long-standing
international conventions in force specifically relating to such straits.
Article36
High seas routes or routes through exclusive economic zones
through straits used for international navigation
This Part does not apply to a strait used for international navigation if there exists through the
strait a route through the high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical characteristics; in such routes, the
other relevant Parts of this Convention, including the provisions regarding the freedoms of
navigation and overflight, apply.
SECTION 2. TRANSIT PASSAGE

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Article37
Scope of this section
This section applies to straits which are used for international navigation between one part of
the high seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.
Article38
Right of transit passage
1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage,
which shall not be impeded; except that, if the strait is formed by an island of a State bordering
the strait and its mainland, transit passage shall not apply if there exists seaward of the island a
route through the high seas or through an exclusive economic zone of similar convenience with
respect to navigational and hydrographical characteristics.
2. Transit passage means the exercise in accordance with this Part of the freedom of navigation
and overflight solely for the purpose of continuous and expeditious transit of the strait between
one part of the high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone. However, the requirement of continuous and expeditious transit does
not preclude passage through the strait for the purpose of entering, leaving or returning from a
State bordering the strait, subject to the conditions of entry to that State.
3. Any activity which is not an exercise of the right of transit passage through a strait remains
subject to the other applicable provisions of this Convention.
Article39
Duties of ships and aircraft during transit passage
1. Ships and aircraft, while exercising the right of transit passage, shall:
(a) proceed without delay through or over the strait;
(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political
independence of States bordering the strait, or in any other manner in violation of the principles
of international law embodied in the Charter of the United Nations;
(c) refrain from any activities other than those incident to their normal modes of continuous and
expeditious transit unless rendered necessary byforce majeure or by distress;
(d) comply with other relevant provisions of this Part.

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2. Ships in transit passage shall:


(a) comply with generally accepted international regulations, procedures and practices for
safety at sea, including the International Regulations for Preventing Collisions at Sea;
(b) comply with generally accepted international regulations, procedures and practices for the
prevention, reduction and control of pollution from ships.
3. Aircraft in transit passage shall:chanrobles virtual law library
(a) observe the Rules of the Air established by the International Civil Aviation Organization as
they apply to civil aircraft; state aircraft will normally comply with such safety measures and will
at all times operate with due regard for the safety of navigation;chanroblesvirtuallawlibrary
(b) at all times monitor the radio frequency assigned by the competent internationally
designated air traffic control authority or the appropriate international distress radio frequency.
Article40
Research and survey activities
During transit passage, foreign ships, including marine scientific research and hydrographic
survey ships, may not carry out any research or survey activities without the prior authorization
of the States bordering straits.
Article41
Sea lanes and traffic separation schemes in straits
used for international navigation
1. In conformity with this Part, States bordering straits may designate sea lanes and prescribe
traffic separation schemes for navigation in straits where necessary to promote the safe
passage of ships.cralaw
2. Such States may, when circumstances require, and after giving due publicity thereto,
substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation
schemes previously designated or prescribed by them.cralaw
3. Such sea lanes and traffic separation schemes shall conform to generally accepted
international regulations.cralaw
4. Before designating or substituting sea lanes or prescribing or substituting traffic separation
schemes, States bordering straits shall refer proposals to the competent international
organization with a view to their adoption. The organization may adopt only such sea lanes and
traffic separation schemes as may be agreed with the States bordering the straits, after which

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the States may designate, prescribe or substitute them.cralaw


5. In respect of a strait where sea lanes or traffic separation schemes through the waters of two
or more States bordering the strait are being proposed, the States concerned shall cooperate in
formulating proposals in consultation with the competent international organization.cralaw
6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes
designated or prescribed by them on charts to which due publicity shall be given.cralaw
7. Ships in transit passage shall respect applicable sea lanes and traffic separation schemes
established in accordance with this article.
Article42
Laws and regulations of States bordering straits
relating to transit passage
1. Subject to the provisions of this section, States bordering straits may adopt laws and
regulations relating to transit passage through straits, in respect of all or any of the
following:chanrobles virtual law library
(a) the safety of navigation and the regulation of maritime traffic, as provided in
article 41;chanroblesvirtuallawlibrary
(b) the prevention, reduction and control of pollution, by giving effect to applicable international
regulations regarding the discharge of oil, oily wastes and other noxious substances in the
strait;chanroblesvirtuallawlibrary
(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing
gear;chanroblesvirtuallawlibrary
(d) the loading or unloading of any commodity, currency or person in contravention of the
customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.
2. Such laws and regulations shall not discriminate in form or in fact among foreign ships or in
their application have the practical effect of denying, hampering or impairing the right of transit
passage as defined in this section.cralaw
3. States bordering straits shall give due publicity to all such laws and regulations.cralaw
4. Foreign ships exercising the right of transit passage shall comply with such laws and
regulations.cralaw
5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity
which acts in a manner contrary to such laws and regulations or other provisions of this Part

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shall bear international responsibility for any loss or damage which results to States bordering
straits.
Article43
Navigational and safety aids and other improvements
and the prevention, reduction and control of pollution
User States and States bordering a strait should by agreement cooperate:chanrobles virtual law
library
(a) in the establishment and maintenance in a strait of necessary navigational and safety aids
or other improvements in aid of international navigation; and
(b) for the prevention, reduction and control of pollution from ships.
Article44
Duties of States bordering straits
States bordering straits shall not hamper transit passage and shall give appropriate publicity to
any danger to navigation or overflight within or over the strait of which they have knowledge.
There shall be no suspension of transit passage.
SECTION 3. INNOCENT PASSAGE
Article45
Innocent passage
1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits
used for international navigation:chanrobles virtual law library
(a) excluded from the application of the regime of transit passage under article 38, paragraph 1;
or
(b) between a part of the high seas or an exclusive economic zone and the territorial sea of a
foreign State.
2. There shall be no suspension of innocent passage through such straits.

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PART V
EXCLUSIVE ECONOMIC ZONE

Article55
Specific legal regime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to
the specific legal regime established in this Part, under which the rights and jurisdiction of the
coastal State and the rights and freedoms of other States are governed by the relevant
provisions of this Convention.
Article56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:chanrobles virtual law library
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of
the seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and
winds;chanroblesvirtuallawlibrary
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard
to:chanrobles virtual law library
(i)
the
establishment
and
use
structures;chanroblesvirtuallawlibrary

of

artificial

islands,

installations

and

(ii) marine scientific research;chanroblesvirtuallawlibrary


(iii) the protection and preservation of the marine environment;chanroblesvirtuallawlibrary
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States
and shall act in a manner compatible with the provisions of this Convention.cralaw
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in

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accordance with Part VI.


Article57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured.
Article58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to
the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation
and overflight and of the laying of submarine cables and pipelines, and other internationally
lawful uses of the sea related to these freedoms, such as those associated with the operation of
ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of
this Convention.cralaw
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.cralaw
3. In exercising their rights and performing their duties under this Convention in the exclusive
economic zone, States shall have due regard to the rights and duties of the coastal State and
shall comply with the laws and regulations adopted by the coastal State in accordance with the
provisions of this Convention and other rules of international law in so far as they are not
incompatible with this Part.
Article59
Basis for the resolution of conflicts
regarding the attribution of rights and jurisdiction
in the exclusive economic zone
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to
other States within the exclusive economic zone, and a conflict arises between the interests of
the coastal State and any other State or States, the conflict should be resolved on the basis of
equity and in the light of all the relevant circumstances, taking into account the respective
importance of the interests involved to the parties as well as to the international community as
a whole.
Article60

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Artificial islands, installations and structures


in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct
and to authorize and regulate the construction, operation and use of:chanrobles virtual law
library
(a) artificial islands;chanroblesvirtuallawlibrary
(b) installations and structures for the purposes provided for in article 56 and other economic
purposes;chanroblesvirtuallawlibrary
(c) installations and structures which may interfere with the exercise of the rights of the coastal
State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and
structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration
laws and regulations.cralaw
3. Due notice must be given of the construction of such artificial islands, installations or
structures, and permanent means for giving warning of their presence must be maintained. Any
installations or structures which are abandoned or disused shall be removed to ensure safety of
navigation, taking into account any generally accepted international standards established in
this regard by the competent international organization. Such removal shall also have due
regard to fishing, the protection of the marine environment and the rights and duties of other
States. Appropriate publicity shall be given to the depth, position and dimensions of any
installations or structures not entirely removed.cralaw
4. The coastal State may, where necessary, establish reasonable safety zones around such
artificial islands, installations and structures in which it may take appropriate measures to
ensure the safety both of navigation and of the artificial islands, installations and
structures.cralaw
5. The breadth of the safety zones shall be determined by the coastal State, taking into account
applicable international standards. Such zones shall be designed to ensure that they are
reasonably related to the nature and function of the artificial islands, installations or structures,
and shall not exceed a distance of 500 metres around them, measured from each point of their
outer edge, except as authorized by generally accepted international standards or as
recommended by the competent international organization. Due notice shall be given of the
extent of safety zones.cralaw
6. All ships must respect these safety zones and shall comply with generally accepted
international standards regarding navigation in the vicinity of artificial islands, installations,
structures and safety zones.cralaw

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7. Artificial islands, installations and structures and the safety zones around them may not be
established where interference may be caused to the use of recognized sea lanes essential to
international navigation.cralaw
8. Artificial islands, installations and structures do not possess the status of islands. They have
no territorial sea of their own, and their presence does not affect the delimitation of the
territorial sea, the exclusive economic zone or the continental shelf.
Article61
Conservation of the living resources
1. The coastal State shall determine the allowable catch of the living resources in its exclusive
economic zone.cralaw
2. The coastal State, taking into account the best scientific evidence available to it, shall ensure
through proper conservation and management measures that the maintenance of the living
resources in the exclusive economic zone is not endangered by over-exploitation. As
appropriate, the coastal State and competent international organizations, whether subregional,
regional or global, shall cooperate to this end.cralaw
3. Such measures shall also be designed to maintain or restore populations of harvested species
at levels which can produce the maximum sustainable yield, as qualified by relevant
environmental and economic factors, including the economic needs of coastal fishing
communities and the special requirements of developing States, and taking into account fishing
patterns, the interdependence of stocks and any generally recommended international
minimum standards, whether subregional, regional or global.cralaw
4. In taking such measures the coastal State shall take into consideration the effects on species
associated with or dependent upon harvested species with a view to maintaining or restoring
populations of such associated or dependent species above levels at which their reproduction
may become seriously threatened.cralaw
5. Available scientific information, catch and fishing effort statistics, and other data relevant to
the conservation of fish stocks shall be contributed and exchanged on a regular basis through
competent international organizations, whether subregional, regional or global, where
appropriate and with participation by all States concerned, including States whose nationals are
allowed to fish in the exclusive economic zone.
Article62
Utilization of the living resources
1. The coastal State shall promote the objective of optimum utilization of the living resources in
the exclusive economic zone without prejudice to article 61.cralaw

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2. The coastal State shall determine its capacity to harvest the living resources of the exclusive
economic zone. Where the coastal State does not have the capacity to harvest the entire
allowable catch, it shall, through agreements or other arrangements and pursuant to the terms,
conditions, laws and regulations referred to in paragraph 4, give other States access to the
surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70,
especially in relation to the developing States mentioned therein.cralaw
3. In giving access to other States to its exclusive economic zone under this article, the coastal
State shall take into account all relevant factors, including,inter alia, the significance of the
living resources of the area to the economy of the coastal State concerned and its other national
interests, the provisions of articles 69 and 70, the requirements of developing States in the
subregion or region in harvesting part of the surplus and the need to minimize economic
dislocation in States whose nationals have habitually fished in the zone or which have made
substantial efforts in research and identification of stocks.cralaw
4. Nationals of other States fishing in the exclusive economic zone shall comply with the
conservation measures and with the other terms and conditions established in the laws and
regulations of the coastal State. These laws and regulations shall be consistent with this
Convention and may relate, inter alia, to the following:chanrobles virtual law library
(a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other
forms of remuneration, which, in the case of developing coastal States, may consist of adequate
compensation in the field of financing, equipment and technology relating to the fishing
industry;chanroblesvirtuallawlibrary
(b) determining the species which may be caught, and fixing quotas of catch, whether in
relation to particular stocks or groups of stocks or catch per vessel over a period of time or to
the catch by nationals of any State during a specified period;chanroblesvirtuallawlibrary
(c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types,
sizes and number of fishing vessels that may be used;chanroblesvirtuallawlibrary
(d)
fixing
the
age
and
size
caught;chanroblesvirtuallawlibrary

of

fish

and

other

species

that

may

be

(e) specifying information required of fishing vessels, including catch and effort statistics and
vessel position reports;chanroblesvirtuallawlibrary
(f) requiring, under the authorization and control of the coastal State, the conduct of specified
fisheries research programmes and regulating the conduct of such research, including the
sampling of catches, disposition of samples and reporting of associated scientific
data;chanroblesvirtuallawlibrary
(g) the placing of observers
State;chanroblesvirtuallawlibrary

or

trainees

on

board

such

vessels

by

the

coastal

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(h) the landing of all or any part of the catch by such vessels in the ports of the coastal
State;chanroblesvirtuallawlibrary
(i)
terms
and
conditions
relating
arrangements;chanroblesvirtuallawlibrary

to

joint

ventures

or

other

cooperative

(j) requirements for the training of personnel and the transfer of fisheries technology, including
enhancement
of
the
coastal
State's
capability
of
undertaking
fisheries
research;chanroblesvirtuallawlibrary
(k) enforcement procedures.
5. Coastal States shall give due notice of conservation and management laws and regulations.
Article63
Stocks occurring within the exclusive economic zones of
two or more coastal States or both within the exclusive economic zone
and in an area beyond and adjacent to it
1. Where the same stock or stocks of associated species occur within the exclusive economic
zones of two or more coastal States, these States shall seek, either directly or through
appropriate subregional or regional organizations, to agree upon the measures necessary to
coordinate and ensure the conservation and development of such stocks without prejudice to
the other provisions of this Part.cralaw
2. Where the same stock or stocks of associated species occur both within the exclusive
economic zone and in an area beyond and adjacent to the zone, the coastal State and the
States fishing for such stocks in the adjacent area shall seek, either directly or through
appropriate subregional or regional organizations, to agree upon the measures necessary for
the conservation of these stocks in the adjacent area.
Article64
Highly migratory species
1. The coastal State and other States whose nationals fish in the region for the highly migratory
species listed in Annex I shall cooperate directly or through appropriate international
organizations with a view to ensuring conservation and promoting the objective of optimum
utilization of such species throughout the region, both within and beyond the exclusive
economic zone. In regions for which no appropriate international organization exists, the coastal
State and other States whose nationals harvest these species in the region shall cooperate to
establish such an organization and participate in its work.cralaw

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2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.
Article65
Marine mammals
Nothing in this Part restricts the right of a coastal State or the competence of an international
organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals
more strictly than provided for in this Part. States shall cooperate with a view to the
conservation of marine mammals and in the case of cetaceans shall in particular work through
the appropriate international organizations for their conservation, management and study.
Article66
Anadromous stocks
1. States in whose rivers anadromous stocks originate shall have the primary interest in and
responsibility for such stocks.cralaw
2. The State of origin of anadromous stocks shall ensure their conservation by the establishment
of appropriate regulatory measures for fishing in all waters landward of the outer limits of its
exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may,
after consultations with the other States referred to in paragraphs 3 and 4 fishing these stocks,
establish total allowable catches for stocks originating in its rivers.
3. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer
limits of exclusive economic zones, except in cases where this provision would result in
economic dislocation for a State other than the State of origin. With respect to such fishing
beyond the outer limits of the exclusive economic zone, States concerned shall maintain
consultations with a view to achieving agreement on terms and conditions of such fishing giving
due regard to the conservation requirements and the needs of the State of origin in respect of
these stocks.cralaw
(b) The State of origin shall cooperate in minimizing economic dislocation in such other States
fishing these stocks, taking into account the normal catch and the mode of operations of such
States, and all the areas in which such fishing has occurred.cralaw
(c) States referred to in subparagraph (b), participating by agreement with the State of origin in
measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be
given special consideration by the State of origin in the harvesting of stocks originating in its
rivers.cralaw
(d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic
zone shall be by agreement between the State of origin and the other States concerned.
4. In cases where anadromous stocks migrate into or through the waters landward of the outer

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limits of the exclusive economic zone of a State other than the State of origin, such State shall
cooperate with the State of origin with regard to the conservation and management of such
stocks.cralaw
5. The State of origin of anadromous stocks and other States fishing these stocks shall make
arrangements for the implementation of the provisions of this article, where appropriate,
through regional organizations.
Article67
Catadromous species
1. A coastal State in whose waters catadromous species spend the greater part of their life cycle
shall have responsibility for the management of these species and shall ensure the ingress and
egress of migrating fish.cralaw
2. Harvesting of catadromous species shall be conducted only in waters landward of the outer
limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting
shall be subject to this article and the other provisions of this Convention concerning fishing in
these zones.cralaw
3. In cases where catadromous fish migrate through the exclusive economic zone of another
State, whether as juvenile or maturing fish, the management, including harvesting, of such fish
shall be regulated by agreement between the State mentioned in paragraph 1 and the other
State concerned. Such agreement shall ensure the rational management of the species and take
into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of
these species.
Article68
Sedentary species
This Part does not apply to sedentary species as defined in article 77, paragraph 4.
Article69
Right of land-locked States
1. Land-locked States shall have the right to participate, on an equitable basis, in the
exploitation of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same subregion or region, taking into account the
relevant economic and geographical circumstances of all the States concerned and in
conformity with the provisions of this article and of articles 61 and 62.cralaw
2. The terms and modalities of such participation shall be established by the States concerned
through bilateral, subregional or regional agreements taking into account, inter alia:chanrobles

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virtual law library


(a) the need to avoid effects detrimental to fishing communities or fishing industries of the
coastal State;chanroblesvirtuallawlibrary
(b) the extent to which the land-locked State, in accordance with the provisions of this article, is
participating or is entitled to participate under existing bilateral, subregional or regional
agreements in the exploitation of living resources of the exclusive economic zones of other
coastal States;chanroblesvirtuallawlibrary
(c) the extent to which other land-locked States and geographically disadvantaged States are
participating in the exploitation of the living resources of the exclusive economic zone of the
coastal State and the consequent need to avoid a particular burden for any single coastal State
or a part of it;chanroblesvirtuallawlibrary
(d) the nutritional needs of the populations of the respective States.
3. When the harvesting capacity of a coastal State approaches a point which would enable it to
harvest the entire allowable catch of the living resources in its exclusive economic zone, the
coastal State and other States concerned shall cooperate in the establishment of equitable
arrangements on a bilateral, subregional or regional basis to allow for participation of
developing land-locked States of the same subregion or region in the exploitation of the living
resources of the exclusive economic zones of coastal States of the subregion or region, as may
be appropriate in the circumstances and on terms satisfactory to all parties. In the
implementation of this provision the factors mentioned in paragraph 2 shall also be taken into
account.cralaw
4. Developed land-locked States shall, under the provisions of this article, be entitled to
participate in the exploitation of living resources only in the exclusive economic zones of
developed coastal States of the same subregion or region having regard to the extent to which
the coastal State, in giving access to other States to the living resources of its exclusive
economic zone, has taken into account the need to minimize detrimental effects on fishing
communities and economic dislocation in States whose nationals have habitually fished in the
zone.cralaw
5. The above provisions are without prejudice to arrangements agreed upon in subregions or
regions where the coastal States may grant to land-locked States of the same subregion or
region equal or preferential rights for the exploitation of the living resources in the exclusive
economic zones.
Article70
Right of geographically disadvantaged States
1. Geographically disadvantaged States shall have the right to participate, on an equitable
basis, in the exploitation of an appropriate part of the surplus of the living resources of the

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exclusive economic zones of coastal States of the same subregion or region, taking into account
the relevant economic and geographical circumstances of all the States concerned and in
conformity with the provisions of this article and of articles 61 and 62.cralaw
2. For the purposes of this Part, "geographically disadvantaged States" means coastal States,
including States bordering enclosed or semi-enclosed seas, whose geographical situation makes
them dependent upon the exploitation of the living resources of the exclusive economic zones
of other States in the subregion or region for adequate supplies of fish for the nutritional
purposes of their populations or parts thereof, and coastal States which can claim no exclusive
economic zones of their own.cralaw
3. The terms and modalities of such participation shall be established by the States concerned
through bilateral, subregional or regional agreements taking into account, inter alia:chanrobles
virtual law library
(a) the need to avoid effects detrimental to fishing communities or fishing industries of the
coastal State;chanroblesvirtuallawlibrary
(b) the extent to which the geographically disadvantaged State, in accordance with the
provisions of this article, is participating or is entitled to participate under existing bilateral,
subregional or regional agreements in the exploitation of living resources of the exclusive
economic zones of other coastal States;chanroblesvirtuallawlibrary
(c) the extent to which other geographically disadvantaged States and land-locked States are
participating in the exploitation of the living resources of the exclusive economic zone of the
coastal State and the consequent need to avoid a particular burden for any single coastal State
or a part of it;chanroblesvirtuallawlibrary
(d) the nutritional needs of the populations of the respective States.
4. When the harvesting capacity of a coastal State approaches a point which would enable it to
harvest the entire allowable catch of the living resources in its exclusive economic zone, the
coastal State and other States concerned shall cooperate in the establishment of equitable
arrangements on a bilateral, subregional or regional basis to allow for participation of
developing geographically disadvantaged States of the same subregion or region in the
exploitation of the living resources of the exclusive economic zones of coastal States of the
subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all
parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also
be taken into account.cralaw
5. Developed geographically disadvantaged States shall, under the provisions of this article, be
entitled to participate in the exploitation of living resources only in the exclusive economic
zones of developed coastal States of the same subregion or region having regard to the extent
to which the coastal State, in giving access to other States to the living resources of its
exclusive economic zone, has taken into account the need to minimize detrimental effects on
fishing communities and economic dislocation in States whose nationals have habitually fished

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in the zone.cralaw
6. The above provisions are without prejudice to arrangements agreed upon in subregions or
regions where the coastal States may grant to geographically disadvantaged States of the same
subregion or region equal or preferential rights for the exploitation of the living resources in the
exclusive economic zones.
Article71
Non-applicability of articles 69 and 70
The provisions of articles 69 and 70 do not apply in the case of a coastal State whose economy
is overwhelmingly dependent on the exploitation of the living resources of its exclusive
economic zone.
Article72
Restrictions on transfer of rights
1. Rights provided under articles 69 and 70 to exploit living resources shall not be directly or
indirectly transferred to third States or their nationals by lease or licence, by establishing joint
ventures or in any other manner which has the effect of such transfer unless otherwise agreed
by the States concerned.cralaw
2. The foregoing provision does not preclude the States concerned from obtaining technical or
financial assistance from third States or international organizations in order to facilitate the
exercise of the rights pursuant to articles 69 and 70, provided that it does not have the effect
referred to in paragraph 1.
Article73
Enforcement of laws and regulations of the coastal State
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and
manage the living resources in the exclusive economic zone, take such measures, including
boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance
with the laws and regulations adopted by it in conformity with this Convention.cralaw
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable
bond or other security.cralaw
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive
economic zone may not include imprisonment, in the absence of agreements to the contrary by
the States concerned, or any other form of corporal punishment.cralaw
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the

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flag State, through appropriate channels, of the action taken and of any penalties subsequently
imposed.
Article74
Delimitation of the exclusive economic zone
between States with opposite or adjacent coasts
1. The delimitation of the exclusive economic zone between States with opposite or adjacent
coasts shall be effected by agreement on the basis of international law, as referred to in
Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable
solution.cralaw
2. If no agreement can be reached within a reasonable period of time, the States concerned
shall resort to the procedures provided for in Part XV.cralaw
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of
understanding and cooperation, shall make every effort to enter into provisional arrangements
of a practical nature and, during this transitional period, not to jeopardize or hamper the
reaching of the final agreement. Such arrangements shall be without prejudice to the final
delimitation.cralaw
4. Where there is an agreement in force between the States concerned, questions relating to the
delimitation of the exclusive economic zone shall be determined in accordance with the
provisions of that agreement.
Article75
Charts and lists of geographical coordinates
1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of
delimitation drawn in accordance with article 74 shall be shown on charts of a scale or scales
adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of
points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of
delimitation.cralaw
2. The coastal State shall give due publicity to such charts or lists of geographical coordinates
and shall deposit a copy of each such chart or list with the Secretary-General of the United
Nations.

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SECTION 5. SETTLEMENT OF DISPUTES AND ADVISORY


OPINIONS
Article186
Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea
The establishment of the Seabed Disputes Chamber and the manner in which it
shall exercise its jurisdiction shall be governed by the provisions of this section,
of Part XV and of Annex VI.
Article187
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Jurisdiction of the Seabed Disputes Chamber


The Seabed Disputes Chamber shall have jurisdiction under this Part and the
Annexes relating thereto in disputes with respect to activities in the Area falling
within the following categories:chanrobles virtual law library
(a) disputes between States Parties concerning the interpretation or application
of this Part and the Annexes relating thereto;chanroblesvirtuallawlibrary
(b) disputes between a State Party and the Authority concerning:chanrobles
virtual law library
(i) acts or omissions of the Authority or of a State Party alleged to be in violation
of this Part or the Annexes relating thereto or of rules, regulations and
procedures of the Authority adopted in accordance therewith; or
(ii) acts of the Authority alleged to be in excess of jurisdiction or a misuse of
power;chanroblesvirtuallawlibrary
(c) disputes between parties to a contract, being States Parties, the Authority or
the Enterprise, state enterprises and natural or juridical persons referred to in
article 153, paragraph 2(b), concerning:chanrobles virtual law library
(i) the interpretation or application of a relevant contract or a plan of work; or
(ii) acts or omissions of a party to the contract relating to activities in the Area
and directed to the other party or directly affecting its legitimate
interests;chanroblesvirtuallawlibrary
(d) disputes between the Authority and a prospective contractor who has been
sponsored by a State as provided in article 153, paragraph 2(b), and has duly
fulfilled the conditions referred to in Annex III, article 4, paragraph 6, and
article 13, paragraph 2, concerning the refusal of a contract or a legal issue
arising in the negotiation of the contract;chanroblesvirtuallawlibrary
(e) disputes between the Authority and a State Party, a state enterprise or a
natural or juridical person sponsored by a State Party as provided for in
article 153, paragraph 2(b), where it is alleged that the Authority has incurred
liability as provided in Annex III, article 22;chanroblesvirtuallawlibrary
(f) any other disputes for which the jurisdiction of the Chamber is specifically
provided in this Convention.
Article188
Submission of disputes to a special chamber of the
International Tribunal for the Law of the Sea
or an ad hoc chamber of the Seabed Disputes Chamber
or to binding commercial arbitration
1. Disputes between States Parties referred to in article 187, subparagraph (a),
may be submitted:chanrobles virtual law library
(a) at the request of the parties to the dispute, to a special chamber of the
International Tribunal for the Law of the Sea to be formed in accordance with
Annex VI, articles 15 and 17; or

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(b) at the request of any party to the dispute, to an ad hoc chamber of the
Seabed Disputes Chamber to be formed in accordance with Annex VI,
article 36.cralaw
2. (a) Disputes concerning the interpretation or application of a contract referred
to in article 187, subparagraph (c)(i), shall be submitted, at the request of any
party to the dispute, to binding commercial arbitration, unless the parties
otherwise agree. A commercial arbitral tribunal to which the dispute is submitted
shall have no jurisdiction to decide any question of interpretation of this
Convention. When the dispute also involves a question of the interpretation of
Part XI and the Annexes relating thereto, with respect to activities in the Area,
that question shall be referred to the Seabed Disputes Chamber for a ruling.
(b) If, at the commencement of or in the course of such arbitration, the arbitral
tribunal determines, either at the request of any party to the dispute
orproprio motu, that its decision depends upon a ruling of the Seabed Disputes
Chamber, the arbitral tribunal shall refer such question to the Seabed Disputes
Chamber for such ruling. The arbitral tribunal shall then proceed to render its
award in conformity with the ruling of the Seabed Disputes Chamber.cralaw
(c) In the absence of a provision in the contract on the arbitration procedure to
be applied in the dispute, the arbitration shall be conducted in accordance with
the UNCITRAL Arbitration Rules or such other arbitration rules as may be
prescribed in the rules, regulations and procedures of the Authority, unless the
parties to the dispute otherwise agree.
Article189
Limitation on jurisdiction
with regard to decisions of the Authority
The Seabed Disputes Chamber shall have no jurisdiction with regard to the
exercise by the Authority of its discretionary powers in accordance with this Part;
in no case shall it substitute its discretion for that of the Authority. Without
prejudice to article 191, in exercising its jurisdiction pursuant to article 187, the
Seabed Disputes Chamber shall not pronounce itself on the question of whether
any rules, regulations and procedures of the Authority are in conformity with this
Convention, nor declare invalid any such rules, regulations and procedures. Its
jurisdiction in this regard shall be confined to deciding claims that the application
of any rules, regulations and procedures of the Authority in individual cases
would be in conflict with the contractual obligations of the parties to the dispute
or their obligations under this Convention, claims concerning excess of
jurisdiction or misuse of power, and to claims for damages to be paid or other
remedy to be given to the party concerned for the failure of the other party to
comply with its contractual obligations or its obligations under this Convention.
Article190
Participation and appearance
of sponsoring States Parties in proceedings
1. If a natural or juridical person is a party to a dispute referred to in article 187,
the sponsoring State shall be given notice thereof and shall have the right to
participate in the proceedings by submitting written or oral statements.cralaw
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2. If an action is brought against a State Party by a natural or juridical person


sponsored by another State Party in a dispute referred to in article 187,
subparagraph (c), the respondent State may request the State sponsoring that
person to appear in the proceedings on behalf of that person. Failing such
appearance, the respondent State may arrange to be represented by a juridical
person of its nationality.
Article191
Advisory opinions
The Seabed Disputes Chamber shall give advisory opinions at the request of the
Assembly or the Council on legal questions arising within the scope of their
activities. Such opinions shall be given as a matter of urgency.

UNCLOS explained: Why Chinas claims in South China


Sea are invalid
By: Matikas Santos / @MSantosINQINQUIRER.net / 07:07 PM February 28, 2014
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arbitration court decision philippines versus china south china sea west
philippine sea itlos spratlys unclos
Members of the Philippine team are seated at the Peace Palace in The Hague
before starting oral arguments on the arbitration case against Chinas claims
over the West Philippine Sea. Members include Solicitor General Florin Hilbay,
Senior Associate Justice Antonio Carpio, Justice Secretary Leila de Lima,
Presidential Adviser on Political Affairs Ronald Llamas, Speaker Sonny Belmonte
Jr., Executive Secretary Pacquito Ochoa Jr., Foreign Secretary Albert del Rosario,
Defense Secretary Voltaire Gazmin, Associate Justice Francis Jardeleza, Chief
Presidential Legal Counsel Benjamin Caguioa, Deputy Executive Secretary
Menardo Guevarra, Consul General Henry Bensurto and legal counsels led by
Paul Reichler of Foley Hoag. PHOTO FROM ABIGAIL VALTES TWITTER ACCOUNT
Chinas nine-dash line fails to meet UNCLOS maritime features requirements
You need land before you claim rights to the sea PH solicitor general
MANILA, Philippines With a little over a month before the Philippines submits
its written arguments to the international Permanent Court of Arbitration,
Solicitor General Francis Jardeleza publicly spoke for the first time about the
basis of the Philippines case against Chinas claim to nearly the entire South
China/West Philippine Sea.
UPDATE: Philippines wins arbitration case vs. China over South China Sea
You need to have land before you can have rights to the sea. Its as simple as
that.You cannot just have rights to the sea without owning land, Jardeleza said
in a forum in the University of the Philippines (UP) law center, citing the basic
principle of the United Nations Convention of the Law of the Sea (UNCLOS).
ADVERTISEMENT
China, in 2009, submitted to the UN its nine-dash line claim that covers the
entire South China Sea, including parts of the Philippines western seaboard from
the provinces of Ilocos Norte up to Palawan.
READ: China violated Philippine sovereign rights in West Philippine Sea
Chinas claim, however, has been repeatedly called invalid and not in accordance
with UNCLOS, which the Philippines ratified in 1986 and China in 1996.
Maritime features
The UNCLOS states three different types of maritime features that allow for the
waters surrounding a country to be claimed as part of its territory.
The first are Islands defined as a naturally formed area of land, surrounded by
water and above water at high tide, Jardeleza said.
Islands, such as Luzon, entitles the country that owns it to a 12 nautical mile
(approximately 22 kilometers) territorial sea from the coastline with which it has
full sovereignty. A country can exclude foreign entities from its territorial sea.
The island is also entitled to a 200 nm (approximately 370 km) exclusive
economic zone (EEZ), which gives the country the sole right to exploit the
resources within it such as fish and also mineral and oil reserves, if any.
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READ: Chinas nine-dash line, historic rights invalidtribunal


The second are rocks or reefs that are mostly below water but have rocky
protrusions above water during high tide. The important point under UNCLOS
states that a maritime feature is a rock if it cannot sustain human habitation or
economic life on its own, Jardeleza said.
Such mostly submerged features are entitled to only a 12 nm territorial sea and
no EEZ. Examples of such are Bajo de Masinloc, also known as Panatag shoal or
Scarborough shoal, which lies 120 nm off the coast of Zambales province.
The shoal is a submerged coral reef with a rocky protrusion that is three meters
above the water during high tide. It cannot be classified as an island because it
cannot sustain economic activity or humans on its own, Jardeleza said.
The third type of maritime features called low tide elevation are submerged
rocks and reefs that are not visible above water. This type of maritime feature is
not entitled to any territorial sea or EEZ.
Contested Island groups
There are two island groups, Paracel Islands and Spratlys Islands, and one shoal,
Scarborough, in South China Sea/West Philippine Sea that are the subject of
maritime disputes between several countries.
READ: Key points of arbitral tribunals verdict on PH-China dispute
The Paracel Islands is disputed by Vietnam and China only. The Philippines has no
interest in it because it is far from the countrys EEZ.
Scarborough shoal off the coast of Zambales lies within the Philippines (EEZ) but
has been exclusively under the control of the Chinese since the 2012 standoff.
The most controversial is the Spratly Group of Islands that is claimed by China,
Philippines, Vietnam, Malaysia, Brunei and Taiwan.
Spratly Islands is composed of more than 140 maritime features of which only 40
are above water some of the time [and of that 40] only 20 are above water at
high tide, according toJardeleza.
The claim of the Philippines in the arbitration is that none of the features
occupied or controlled by China is entitled to a 200 nm EEZ, he said.
You dont have to be a rocket scientist, the [nine-dash line] claim violates
UNCLOS. The most that China can claim should only be 200 nm outside of
Hainan, Jardeleza said.
Eight features under protest
The case submitted by the Philippines to the International Tribunal on the Law of
the Sea (ITLOS) concerns eight maritime features that are currently under the
control of China.
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The first four are low tide elevations that are completely submerged: Mischief
Reef, which is 130 nm from Palawan, Kennan Reef (180 nm), Gaven Reef (205
nm) and Subi Reef (230nm).
READ: China: We are the victims in dispute; wont heed UN decision
These are all below water at high tide. Theyre not entitled to anything. No
territorial sea, no EEZ. But all of these four are physically occupied by China,
Jardeleza said.
China has constructed concrete structures on the reefs including helicopter
landing pads over the years since 1995 but that does not give them entitlements
to the seas around it.
The other four are rocks or reefs that are, at most, entitled to only 12 nm. These
are Scarborough shoal, 120 nm from Luzon, Johnson reef 180 (nm from Palawan),
Cuarteron reef (240nm from Palawan) and Fiery Cross reef (255 nm from
Palawan).
The position of the Philippines is [Chinas] nine-dash line is invalid. It violates
UNCLOS. The four reefs that are below water all the time are entitled to no rights
and the four are rocks which would only have 12 nautical miles, Jardeleza said.

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FULL TEXT: DFA chief Del Rosarios speech at UN


tribunal
INQUIRER.net / 02:37 PM July 08, 2015
WHY THE PHILIPPINES BROUGHT THIS CASE TO ARBITRATION AND ITS
IMPORTANCE TO THE REGION AND THE WORLD
Republic of the Philippines v. Peoples Republic of China
HON. ALBERT F. DEL ROSARIO
Secretary of Foreign Affairs
07 July 2015
1. Mr. President, distinguished Members of the Tribunal, it is a great honor to
respectfully appear before you on behalf of my country, the Republic of the
Philippines. It is indeed a special privilege to do so in a case that has such
importance to all Filipinos and if I may add to the rule of law in international
relations.
2. Mr. President, the Philippines has long placed its faith in the rules and
institutions that the international community has created to regulate relations
among States. We are proud to have been a founding member of the United
Nations, and an active participant in that indispensable institution.
ADVERTISEMENT
3. Its organs, coupled with the power of international law, serve as the great
equalizer among States, allowing countries, such as my own, to stand on an
equal footing with wealthier, more powerful States.
4. Nowhere is this more true, Mr. President, than with respect to the progressive
development of the law of the sea, which culminated in the adoption of the Law
of the Sea Convention in 1982. That instrument, which has rightly been called a
Constitution for the Oceans, counts among its most important achievements
the establishment of clear rules regarding the peaceful use of the seas, freedom
of navigation, protection of the maritime environment and, perhaps most
importantly, clearly defined limits on the maritime areas in which States are
entitled to exercise sovereign rights and jurisdiction.
READ: UNCLOS explained: Why Chinas claims in South China Sea are invalid
It is these dispute resolution provisions that allow the weak to challenge the
powerful on an equal footing, confident in the conviction that principles trump
power; that law triumphs over force; and that right prevails over might.
5. These are all matters of central significance to the Philippines. Indeed, given
our lengthy coastline, our status as an archipelagic state, and our seafaring
tradition, the rules codified in the law of the sea have always had particular
importance for the Philippines. The Philippines is justifiably proud of the fact that
it signed the Convention on the day it was opened for signature, on 10 December
1982, and was one of the first States to submit its instrument of ratification,
which it did on 8 May 1984.
6. The Philippines has respected and implemented its rights and obligations
under the Convention in good faith. This can be seen in the amendment of our
national legislation to bring the Philippines maritime claims into compliance with
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the Convention, by converting our prior straight baselines into archipelagic


baselines in conformity with Articles 46 and 47, and by providing that the
maritime zones of the Kalayaan Island Group and Scarborough Shoal in the South
China Sea would be consistent with Article 121.
7. The Philippines took these important steps, Mr. President, because we
understand, and accept, that compliance with the rules of the Convention is
required of all States Parties.
READ: PH power team to The Hague; UN tribunal to rule first on jurisdiction
8. I mentioned a moment ago the equalizing power of international law. Perhaps
no provisions of the Convention are as vital to achieving this critical objective
than Part XV. It is these dispute resolution provisions that allow the weak to
challenge the powerful on an equal footing, confident in the conviction that
principles trump power; that law triumphs over force; and that right prevails over
might.
9. Mr. President, allow me to respectfully make it clear: in submitting this case,
the Philippines is NOT asking the Tribunal to rule on the territorial sovereignty
aspect of its disputes with China.
10. We are here because we wish to clarify our maritime entitlements in the
South China Sea, a question over which the Tribunal has jurisdiction. This is a
matter that is most important not only to the Philippines, but also to all coastal
States that border the South China Sea, and even to all the States Parties to
UNCLOS. It is a dispute that goes to the very heart of UNCLOS itself. Our very
able counsel will have much more to say about this legal dispute over the
interpretation of the Convention during the course of these oral hearings. But in
my humble laymans view, the central legal dispute in this case can be
expressed as follows:
We are here because we wish to clarify our maritime entitlements in the South
China Sea, a question over which the Tribunal has jurisdiction. This is a matter
that is most important not only to the Philippines, but also to all coastal States
that border the South China Sea.
READ: Chinas army plays down South China Sea island-building
11. For the Philippines, the maritime entitlements of coastal States to a
territorial sea, exclusive economic zone and continental shelf, and the rights and
obligations of the States Parties within these respective zones are established,
defined and limited by the express terms of the Convention. Those express terms
do not allow for in fact they preclude claims to broader entitlements, or
sovereign rights, or jurisdiction, over maritime areas beyond the limits of the EEZ
or continental shelf. In particular, the Convention does not recognize, or permit
the exercise of, so called historic rights in areas beyond the limits of the
maritime zones that are recognized or established by UNCLOS.
12. Sadly, China disputes this, Mr. President, in both word and deed. It claims
that it is entitled to exercise sovereign rights and jurisdiction, including the
exclusive right to the resources of the sea and seabed, far beyond the limits
established by the Convention, based on so-called historic rights to these
areas. Whether these alleged historic rights extend to the limits generally
established by Chinas so-called nine dash line, as appears to be Chinas claim,
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or whether they encompass a greater or a narrower portion of the South China


Sea, the indisputable fact, and the central element of the legal dispute between
the Parties, is that China has asserted a claim of historic rights to vast areas of
the sea and seabed that lie far beyond the limits of its EEZ and continental shelf
entitlements under the Convention.
13. In fact, China has done much more, Mr. President, than to simply claim these
alleged historic rights. It has acted forcefully to assert them, by exploiting the
living and non-living resources in the areas beyond the UNCLOS limits while
forcibly preventing other coastal States, including the Philippines, from exploiting
the resources in the same areas even though the areas lie well within 200 M of
the Philippines coast and, in many cases, hundreds of miles beyond any EEZ or
continental shelf that China could plausibly claim under the Convention.
China has claimed historic rights in areas that are beyond 200 M from its
mainland coasts, or any land feature over which it claims sovereignty, and within
200 M of the coasts of the Philippines main islands, and exploited the resources
in these areas while preventing the Philippines from doing so.
PHOTOS: Chinas land reclamation in West Philippine Sea
14. The legal dispute between the Philippines and China over Chinas claim to
and exercise of alleged historic rights is a matter falling under the Convention,
and particularly Part XV, regardless of whether China is claiming that historic
rights are recognized under the Convention, or allowable under the Convention
because they are not precluded by it. China has made both arguments in its
public statements. But it makes no difference for purposes of the
characterization of this dispute as one calling for the interpretation or application
of the Convention. The question raised by the conflicting positions of the
Philippines and China boils down to this: Are maritime entitlements to be
governed strictly by UNCLOS, thus precluding claims of maritime entitlements
based on historic rights? Or does the UNCLOS allow a State to claim
entitlements based on historic or other rights even beyond those provided for
in the Convention itself?
15. As our counsel will explain, Mr. President, any recognition of such historic
rights conflicts with the very character of UNCLOS and its express provisions
concerning the maritime entitlements of coastal States. This calls indisputably
for the proper interpretation of the fundamental nature of the Convention.
16. Chinas assertion and exercise of its alleged rights in areas beyond its
entitlements under UNCLOS have created significant uncertainty and instability
in our relations with China and in the broader region. In this respect, I note the
presence here today of representatives of Vietnam, Malaysia, Indonesia, Thailand
and Japan to observe these critical proceedings.
READ: Supreme Court Justice Antonio Carpio debunks Chinas historical claim
The Philippines is committed to resolving its disputes with China peacefully and
in accordance with international law. For over two decades, we diligently pursued
that objective bilaterally, regionally and multilaterally.
17. Mr. President, China has claimed historic rights in areas that are beyond
200 M from its mainland coasts, or any land feature over which it claims
sovereignty, and within 200 M of the coasts of the Philippines main islands, and
exploited the resources in these areas while preventing the Philippines from
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doing so. It has therefore, in the Philippines view, breached the Convention by
violating Philippine sovereign rights and jurisdiction. China has pursued its
activities in these disputed maritime areas with overwhelming force. The
Philippines can only counter by invoking international law. That is why it is of
fundamental importance to the Philippines, and we would submit, for the rule of
law in general, for the Tribunal to decide where and to what limit China has
maritime entitlements in the South China Sea; where and to what limit the
Philippines has maritime entitlements; where and to what extent the Parties
respective entitlements overlap and where they do not. None of this requires or
even invites the Tribunal to make any determinations on questions of land
sovereignty, or delimitation of maritime boundaries.
18. The Philippines understands that the jurisdiction of this tribunal convened
under UNCLOS is limited to questions that concern the law of the sea. With this in
mind, we have taken great care to place before you only claims that arise
directly under the Convention. As counsel for the Philippines will discuss at
length in the coming days, we have, in essence, presented five (5) principal
claims. They are:
First, that China is not entitled to exercise what it refers to as historic rights
over the waters, seabed and subsoil beyond the limits of its entitlements under
the Convention;
Second, that the so-called nine dash line has no basis whatsoever under
international law insofar as it purports to define the limits of Chinas claim to
historic rights;
Third, that the various maritime features relied upon by China as a basis upon
which to assert its claims in the South China Sea are not islands that generate
entitlement to an exclusive economic zone or continental shelf. Rather, some are
rocks within the meaning of Article 121, paragraph 3; others are low-tide
elevations; and still others are permanently submerged. As a result, none are
capable of generating entitlements beyond 12M, and some generate no
entitlements at all. Chinas recent massive reclamation activities cannot lawfully
change the original nature and character of these features;
Fourth, that China has breached the Convention by interfering with the
Philippines exercise of its sovereign rights and jurisdiction; and
Fifth, that China has irreversibly damaged the regional marine environment, in
breach of UNCLOS, by its destruction of coral reefs in the South China Sea,
including areas within the Philippines EEZ, by its destructive and hazardous
fishing practices, and by its harvesting of endangered species.
READ: South China Sea row endangers PH maritime industryexpert
Over the years, Chinas positions and behavior have become progressively more
aggressive and disconcerting. Outside observers have referred to this as Chinas
salami-slicing strategy: that is, taking little steps over time, none of which
individually is enough to provoke a crisis.
19. Mr. President, the Philippines is committed to resolving its disputes with
China peacefully and in accordance with international law. For over two decades,
we diligently pursued that objective bilaterally, regionally and multilaterally. I will
not here take this Tribunal through the Philippines painstaking and exhaustive
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diplomatic efforts, which are set out in detail in our written pleadings. I will,
however, mention a few representative examples, if I may.
20. As far back as August 1995, after China seized and built structures on
Mischief Reef a low-tide elevation located 126 nautical miles from the
Philippine island of Palawan and more than 600 nautical miles from the closest
point on Chinas Hainan Island the Philippines sought to address Chinas
violation of its maritime rights diplomatically. During those exchanges, the
Philippines and China agreed that the dispute should be resolved in accordance
with UNCLOS. As the then Chinese Vice Minister for Foreign Affairs, Mr. Tang
Jiaxuan, stated two years later during bilateral negotiations, China and the
Philippines should approach the disputes on the basis of international law,
including the United Nations Convention on the Law of the Sea, particularly its
provisions on the maritime regimes like the exclusive economic zone.
21. The mutual acceptance that the Philippines disputes with China must be
resolved in accordance with UNCLOS was also reflected in a Joint Communiqu
issued in July 1998 upon completion of bilateral discussions between my
predecessor, Foreign Secretary Domingo Siazon, and Chinas Foreign Minister
Tang Jiaxuan. The Communiqu recorded that, and I quote, The two sides
exchanged views on the question of the South China Sea and reaffirmed their
commitment that the relevant disputes shall be settled peacefully in accordance
with the established principles of international law, including the United Nations
Convention on the Law of the Sea. (End of quote)
READ: China turning reefs into artificial islands for dominanceexpert
22. Regrettably, neither the bilateral exchanges I have mentioned, nor any of the
great many subsequent exchanges, proved capable of resolving the impasse
caused by Chinas intransigent insistence that China alone possesses maritime
rights in virtually the entirety of the South China Sea, and that the Philippines
must recognize and accept Chinas sovereignty before meaningful discussion of
other issues could take place.
23. The Philippines has also been persistent in seeking a diplomatic solution
under the auspices of ASEAN. This has proven no more successful than our
bilateral efforts. In fact, China has insisted that ASEAN cannot be used to resolve
any territorial or maritime disputes concerning the South China Sea, and that
such issues can only be dealt with in bilateral negotiations. ASEAN and China
have yet to conclude a binding code of conduct in the South China Sea. The most
that has been achieved was the issuance, in 2002, of a Declaration on the
Conduct of Parties in the South China Sea. Although that document recorded the
parties commitment to work toward the eventual establishment of a code of
conduct in the South China Sea, Chinas intransigence in the 13 years of
subsequent multilateral negotiations has made that goal nearly unattainable.
24. Nonetheless, Mr. President, the 2002 DOC is significant in at least one
important respect: the ASEAN Member States and China undertook therein to
resolve their territorial and jurisdictional disputes by peaceful means, without
resorting to the threat or use of force, through friendly consultations and
negotiations by sovereign states directly concerned, in accordance with
universally recognized principles of international law, including the 1982 UN
Convention on the Law of the Sea. In so doing, the Declaration encouraged
those States, should they prove unable to resolve their disputes through
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consultations or negotiations, to do so in accordance with the Convention, which


includes, of course, the dispute resolution procedures under Part XV.
READ: Chinas refusal to join arbitration a serious violation of Unclos
25. Mr. President, over the years, Chinas positions and behavior have become
progressively more aggressive and disconcerting. Outside observers have
referred to this as Chinas salami-slicing strategy: that is, taking little steps
over time, none of which individually is enough to provoke a crisis. Chinese
military officials themselves have referred to this as its cabbage strategy:
peeling one layer off at a time. When these small steps are taken together,
however, they reflect Chinas efforts to slowly consolidate de facto control
throughout the South China Sea.
26. Two more recent incremental steps caused the Philippines to conclude that it
had no alternative other than to invoke compulsory procedures entailing a
binding decision. The first was Chinas transmittal of its nine-dash line claim to
the United Nations in 2009, after which, it prevented the Philippines from
carrying out long-standing oil and gas development projects in areas that are
well inside the Philippines 200 M EEZ and continental shelf.
27. Secondly, in 2012, China forcibly expelled Philippine fishermen from the
maritime areas around Scarborough Shoal where the Filipino fishermen have for
generations been fishing without so much as a protest from China.

Charter requires patrolling of EEZ


| Updated September 21, 2016 - 12:00am
googleplus
Australia is perplexed. Philippine President Duterte has said he would not be
joining US patrols through contested areas of the South China Sea. Yet it was his
country that initiated the push back on Chinas power in the region. Foreign
Minister Julie Bishop seeks clarification. The Australian press reports:
Duterte, who has called for US troop removal from Mindanao and buying
Russian and Chinese weapons, said he did not want his country involved in US
freedom of navigation patrols in the South China Sea.
In July the Permanent Court of Arbitration in The Hague ruled that Chinas claim
of historic right within the areas falling within the nine-dash line had no legal
basis.
Australia has endured the wrath of Beijing for calling for it to abide by the Hague
ruling and supporting the Philippines right to take the case to arbitration in the
first place.
Bishop said Duterte should be asked why he does not want to enforce the ruling
although his country brought the case to the court.
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The question should be directed to the Philippines as to what they are doing to
reinforce the arbitration findings, Bishop told reporters. Arent you surprised
that the Philippines is now not going to traverse the territory that the arbitration
has just found is in its EEZ [exclusive economic zone]? And that the arbitration
found that China was in breach of the Philippines sovereignty? And now the
Philippines withdraws from those contested areas the arbitration has found were
within its EEZ.
***
The STAR reported last week:
President Duterte said Tuesday he wont allow government forces to conduct
joint patrols of disputed waters near the South China Sea with foreign powers,
apparently scrapping a deal his predecessor reached with the US military earlier
this year.
The remarks were the latest from a Philippine president who has had an uneasy
relationship with the US but also has tried to mend relations with China strained
over South China Sea disputes.
Duterte said he wanted only Philippine territorial waters, up to 12 nautical miles
offshore, to be patrolled by Filipino forces, but not other offshore areas that are
contested. He added he opposes Filipino forces accompanying foreign powers
like the US and China in joint patrols which could entangle the Philippines in
hostilities.
We do not go into a patrol or join any other army from now on because I do not
want trouble, Duterte said. I do not want to ride gung-ho style there with China
or with America. I just want to patrol our territorial waters.
Like other security pronouncements, Duterte did not provide details, but his
rejection of joint patrols apparently goes against such an arrangement
announced in April by the US and Philippine defense chiefs.
While visiting Manila, US Defense Secretary Ash Carter disclosed for the first
time in a news conference with then-Philippine Defense Secretary Voltaire
Gazmin that US ships had carried out sea patrols with the Philippines in the
South China Sea, a somewhat rare move.
Carter insisted the US did not intend to be provocative and was trying to tamp
down tensions here. But Gazmin said he expected that US forces, with their
presence here, will deter uncalled-for actions by the Chinese.
***
Supreme Court Senior Justice Antonio Carpio comments:
1. The Constitution mandates the State to protect the nations EEZ.
2. The Constitution defines the national territory to include the nations EEZ.

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3. The Constitution tasks the Armed Forces to protect the national territory,
which includes the nations EEZ.
4. The President is the Commander-in-Chief of the Armed Forces.
5. The President has taken an oath to preserve and defend the Constitution.
6. Thus, the President has the constitutional duty to protect the nations EEZ.
7. The Philippine EEZ in the West Philippine Sea is no longer disputed since an
UNCLOS Tribunal had already ruled with finality that Chinas nine-dashed lines
have no legal basis, and China has no overlapping EEZ with the Philippines in the
West Philippine Sea. China is merely a squatter in the West Philippine Sea, with
no legal right to remain there. To say that the Philippine EEZ in the West
Philippine Sea is still disputed is to effectively overturn the ruling of the UNCLOS
Tribunal. By remaining in our EEZ, China is committing a hostile act against the
Philippines. By patrolling its own EEZ, as affirmed by an UNCLOS Tribunal, the
Philippines cannot be considered committing any hostile act against China or any
other country.
8. The only way to protect the Philippine EEZ from foreign poachers is to send
patrols to the EEZ. Otherwise, foreign fishing vessels will poach billions of pesos
in fish from our EEZ. Under UNCLOS, the Philippines has the exclusive right to all
the fish within its EEZ.
9. The Malampaya gas field, which supplies 40 percent of the energy
requirement of Luzon, is located 43 nautical miles from Palawan, beyond our 12nautical mile territorial sea but within our EEZ. We must secure Malampaya, and
the only way to do that is to patrol the EEZ area around Malampaya.
10. In sum, the Constitution mandates and national interest dictates that the
Philippines, on its own, patrol its EEZ.

CALLS FOR JOINT PATROLS TO CONTINUE

Justice Carpio: Only US can protect PHL's EEZ from


Chinese poachers
Published October 11, 2016 9:24pm
The Philippines should keep its joint patrol with the United States to protect its
Exclusive Economic Zone (EEZ), particularly from Chinese poachers, Supreme
Court Senior Associate Justice Antonio Carpio said Tuesday.
"There is only one power on Earth that can stop the Chinese from poaching in our
EEZ. That is the US," said Carpio amid President Rodrigo Duterte's strong
opposition to joint patrols and anti-US rhetoric.
Duterte had called for a stop in joint patrols in the West Philippine Sea, saying he
does not want "trouble." He said he wants military patrols to be limited to the
country's 12-mile territorial sea.
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But according to Carpio, the Constitution mandates the military to patrol the
country's 200-mile exclusive economic zone and not just the 12-mile territorial
sea.
"The Constitution says the State shall protect its EEZ. The Philippines must
protect its EEZ, that's the mandate of the Constitution," Carpio said.
Article XII, Section 2 of the Constitution directs the State to "protect the nation's
marine wealth in its archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino citizens."
"The only way to protect that is to send patrol ships there because if a foreign
fishing vessel will poach on our waters in the EEZ, the only way we can stop
them is to patrol there," Carpio said.
The Spratly Islands, a chain of islands and islets believed to rich in oil and
minerals deposits, is outside the country's territorial sea but is within and even
extends beyond the country's EEZ, and is being claimed in part or in whole by
the Philippines, China, Malaysia, Vietnam, Brunei and Taiwan.
The Malampaya deep water gas-to-power project is also outside the country's
territorial sea as it is located 43 miles from mainland Palawan.
Carpio said the Philippines stands to lose billions of pesos "if anyone can attack
our facility in Malampaya."
"It will endanger our energy security in Luzon and we're going to lose a lot of fish
and that will amount to billions of pesos," Carpio said.
Carpio was a party to the case lodged by the Philippines before a United Nations
arbitral court against China's nine-dash line claim over the South China Sea.
In a ruling last July, the court dismissed China's excessive claim and upheld
Philippines 200-mile EEZ under the UN Convention on the Law of the Sea.
Carpio was in Fort Bonifacio for the closing ceremony of this year's Amphibious
Landing Exercise or Phiblex between Filipino and US troops. KBK, GMA News

US, PH start joint patrols in disputed sea


By: Nikko Dizon / @NikkoDizonINQPhilippine Daily Inquirer / 01:41 AM April 15,
2016
U.S. Defense Secretary Ash Carter, left, talks with his Philippine counterpart
Voltaire Gazmin during their joint press conference at the Malacanang
presidential palace in Manila, Philippines on Thursday, April 14, 2016. The United
States on Thursday revealed for the first time that American ships have started
conducting joint patrols with the Philippines in the South China Sea, a somewhat
rare move not done with many other partners in the region. (Romeo Ranoco/Pool
Photo via AP)
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U.S. Defense Secretary Ash Carter, left, talks with his Philippine counterpart
Voltaire Gazmin during their joint press conference at the Malacanang
presidential palace in Manila, Philippines on Thursday, April 14, 2016. The United
States on Thursday revealed for the first time that American ships have started
conducting joint patrols with the Philippines in the South China Sea, a somewhat
rare move not done with many other partners in the region. (Romeo Ranoco/Pool
Photo via AP)
The United States and the Philippines have begun joint patrols in the disputed
South China Sea under the Enhanced Defense Cooperation Agreement (Edca), US
Defense Secretary Ashton Carter said Thursday.
Speaking at a joint news conference with Defense Secretary Voltaire Gazmin in
Malacaang, Carter also announced that US troops and military equipment would
be sent on regular rotations in the Philippines under Edca.
The enhanced security cooperation between the United States and the
Philippines comes amid increasingly assertive territorial claims by China in the
South China Sea.
ADVERTISEMENT
Carter said the joint patrols in the South China Sea, a somewhat rare move for
the United States not done with many other partners in the region, began last
month.
We believe that such operations will help us fulfill our priority to develop our
maritime security and domain awareness, which are currently on top of our
agenda, Carter said.
The Pentagon chief, who arrived on Wednesday on an Asian tour that included
witnessing joint military exercises between US and Filipino forces in the
Philippines, paid a courtesy call on President Aquino at the Palace, where they
discussed the territorial dispute between the Philippines and China among other
common concerns.
Gazmin and Carter also held bilateral talks before facing Filipino and American
journalists.
Carter said the joint patrols would continue to help build our interoperability and
improve the Philippine Navy even as these patrols contribute to the safety and
security of the regions waters.

US military buildup
He said the United States would be keeping nearly 300 troops, including US Air
Force commandos armed with combat aircraft and helicopters, in the Philippines
through the end of the month.
The US plan is part of a military buildup sure to inflame tensions with China in
the South China Sea, almost all of which China claims, including waters close to
the shores of its smaller neighbors in the region.
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Brunei, Malaysia, the Philippines, Vietnam and Taiwan have competing claims in
the resource-rich South China Sea.
Washington regularly criticizes Beijing for building artificial islands on reefs in the
Spratly archipelago and developing military facilities on them, including airstrips,
to intimidate the other claimants.
China has rejected the criticisms, insisting it has undisputed sovereignty over
the South China Sea, a claim that the United States has challenged by sending
warships and warplanes to the disputed region on so-called freedom-ofnavigation operations.
Carter said the US troops who would stay behind after the annual Balikatan war
games would lay the foundation for joint air patrols to complement ongoing
maritime patrols.
US planes
He said the US planes to be left behind were five A-10C Thunderbolt II ground
attack aircraft, three HH-60G Pave Hawk helicopters and an MC-130H special
operations aircraft.
Carter said he would visit the Antonio Bautista Air Base in Palawan, one of five
Philippine military bases that would be opened to US troops and equipment
under the Edca.
He said a command and control unit of American personnel would also remain in
the country for continued training.
Carter was referring to a secure communications network of the US military.
Peter Paul Galvez, spokesperson for the Department of National Defense, said
the Armed Forces of the Philippines was developing a similar communication
system so that we dont have to rely on mobile phones anymore.
$40-million assistance
Last week, the Pentagon announced that the United States would send about
$40 million in military assistance to the Philippines to beef up intelligence
sharing, surveillance and naval patrols.
Carter said the aid would include an enhanced information network for classified
communications, sensors for patrols vessels and an unmanned aerostat
reconnaissance airship.
The patrol sensors and surveillance equipment will help the Philippines keep a
watch over its territory, including areas where there are overlapping claims in the
South China Sea.
Disputed areas
Asked if the joint patrols would be conducted in disputed areas in the South
China Sea, Carter said he could not discuss operational matters.
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But our military-to-military activities plan for a broad range of activitiesfrom


maritime
activities to natural disasters, accidents, incidents, provocations. From the
American point of view, our alliance covers all of the Philippine territory, he
said.
Troop rotation
The US troops staying after the war games are expected to leave at the end of
the month, but other US forces and aircraft would do similar rotations into the
Philippines in the future.
A defense official would not say how frequently those rotations would happen,
but said the size, schedule and makeup would fluctuate. The official was not
authorized to discuss the issue publicly so he spoke on condition of anonymity.
The increased troop presence is part of a broader US campaign to expand its
assistance to the Philippines, as America shores up its allies in the Asia-Pacific
region.
And it comes as the United Nations Permanent Court of Arbitration in The Hagues
rules in coming weeks on the Philippines challenge to Chinas sweeping claims
in the South China Sea.
China has said it will not recognize any ruling by the court and proceeded to
build outposts in the Spratlys in anticipation of the tribunals decision. With a
report from AP

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PH Navy prepared for joint WPS patrol with US Navy


January 16, 2016 PNA Nation
Should the countrys call for a joint maritime patrol agreement in disputed
portions of the South China Sea be honored by the United States, the Philippine
Navy (PN) has the necessary ships and training to keep up with their American
counterparts.

Yes, the Navy does. The joint maritime patrol, if and when finalized, by the two
Navies, will in fact be the application and execution of the many opportunities in
the past that they were conducting joint maritime and interoperability exercises,
PN spokesperson Col. Edgard Arevalo said in a message to the PNA.
These collaborative activities even before the signing of the Enhanced Defense
Cooperation Agreement (and the SCs upholding of its constitutionality) will
surely benefit both countries that are both committed in that part of the sea, he
added.
The countrys interest for a joint-patrol agreement come out during the
Philippine-US 2+2 ministerial meeting held in Washington D.C. last Jan. 12.
The 2+2 meeting extensively discussed the South China Sea issue, with the US
side reiterating the US ironclad commitment to the defense of the Philippines
while the Philippines batting for joint patrols. The US also conveyed that it
remains committed to the AFPs modernization program, Defense spokesperson
Dr. Peter Paul Galvez earlier said.
During the meeting, the US emphasized that it would not allow China to control
the South China Sea and act to ensure that freedom of navigation was respected.
It also stressed that they would continue to fly and sail whenever and wherever
international law allows.
The US also committed to maintain presence in the South China Sea to include
naval, sub-sea, air and special forces.
In addition, the US urged the Philippines to stay closely coordinated with respect
to the developments in the South China Sea.
Noting Chinas claim that it will not militarize the area, the US suggested the
need for parties in the South China Sea to have a common and shared
understanding of the term militarization to avoid growing tensions.
A common sense among the other parties would put pressure on China.

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What you need to know about EDCA


By CNN Philippines Staff
Updated 16:40 PM PHT Thu, April 14, 2016
(File photo)
Metro Manila (CNN Philippines) A military agreement between the U.S. and the
Philippines has overcome its biggest legal hurdle.
On Tuesday (January 12), the Supreme Court upheld the constitutionality of the
Enhanced Defense Cooperation Agreement (EDCA) between the U.S. and the
Philippines, by a vote of 10-4, and one inhibition.
The court agreed with the governments contention that this is an executive
agreement, not a treaty. The Supreme Court said that EDCA carries out
provisions of previous agreements such as the 1951 Mutual Defense Treaty and
the 1998 Visiting Forces Agreement.
This essentially means that EDCA does not need the concurrence of the Senate.
That's a huge weight lifted off the back of the Aquino administration, which has
seen priority bills such as the Bangsamoro Basic Law get stuck in the
legislature.
According to the Philippine government, it took over two years before the
agreement was reached.
EDCA.pngFilipino and American soldiers in a joint military training activity.
Military ties between both countries date back decades, and the U.S. operated
bases in the Philippines until 1991. Granted that EDCA carries out provisions of
previous agreements, it is not necessarily a return to the past, according to the
government. EDCA explicitly prohibits the U.S. from establishing a permanent
military presence or bases in the Philippines.
U.S. State Secretary John Kerry on Wednesday (January 13 PHT) said Washington
welcomed the Supreme Court decision. We look forward to implementing this
accord, which will increase the interoperability of our armed forces and
contribute to modernization and improve our joint capacity to respond to
humanitarian emergencies, he said.
He said the two countries military cooperation in maritime security and domain
awareness benefits not just our mutual defense but also actively contributes to
maintaining regional stability.
The conditions governing the presence of U.S. forces in the Philippines will be
different from those in Japan and South Korea, which host U.S. military bases.
Detractors of the agreement think otherwise. Bagong Alyansang Makabayan
Secretary General Renato Reyes has argued that the agreement makes the
country a launching pad for U.S. military intervention, and transforms it into a
U.S. military outpost.
Watch: EDCA a one-sided deal for U.S., analyst says
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EDCA and U.S. military presence as a whole have generated concerns over the
conduct of American service members in the country, with the conviction last
year of U.S. Marine Lance Cpl. Joseph Scott Pemberton for the killing of Filipino
transgender woman Jennifer Laude on October 11, 2014 while on liberty
following a joint U.S.-Philippine military exercise. The court sentenced Pemberton
to imprisonment of 6 to 12 years.
Also read: Joseph Scott Pemberton found guilty of homicide, sentenced to 6-12
years in prison
What does EDCA plan to accomplish?
U.S. Defense Secretary Ash Carter suggested Wednesday that EDCA could
support freedom of navigation and freedom of the commons in regional waters,
in light of his country's "rebalance to the Asia Pacific region" that entails
prepositioning men and materiel in friendly countries.
Related: Philippines, United States reinforce alliance through EDCA
"The United States has indicated our intention to fly, sail, and operate wherever
international law allows, whether it be the South China Sea or anywhere else
around the world."
"And the Philippines and the EDCA decision by the Supreme Court gives us new
opportunities here also is strengthening its role in maritime security, and in
that connection were working and now have new opportunities to work with the
Philippines," he said.
Philippine Foreign Affairs Secretary Albert Del Rosario said EDCA's approval
"opens new opportunities to further deepen" the U.S.-Philippines alliance. He
emphasized the close ties the two countries have had over the last 70 years. For
Del Rosario, relations between both countries are at their "best point."
"One factor behind this is the conscious effort of our leaders to invest in our
enduring engagement, and another factor is the emergence of regional
challenges that have underscored the need for concerted effort to protect our
common values," he added.
What are the authorized activities of the U.S. military personnel?
The agreement is explicit with regard to the type of activities the U.S. may
undertake within Philippine territory, in relation to its access and use of "agreed
locations":
Security cooperation exercises
Joint and combined training
Humanitarian assistance and disaster relief
Other activities as agreed upon between the U.S. and the Philippines
Where will U.S. forces be stationed?
EDCA grants the U.S. access to agreed locations without rental or similar fees.
However, the U.S. will have to cover its own operational expenses.
Edca_Bases_Philippines_CNNPH.png

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Likewise, the agreement stipulates that the U.S., through bilateral security
mechanisms, will have operational control of agreed locations for construction
activities. It also grants the U.S. the authority to undertake alterations and
improvements to those areas.
A "Philippine Designated Authority" and its authorized representative shall have
access to these locations.
Read: EDCA helpful to PH in S. China Sea row - retired U.S. admiral
Who will own the land and the structures?
EDCA says that the Philippines will retain ownership of the agreed locations. The
U.S. will have to return any agreed locations including permanent structures if
such are no longer required for its activities under the EDCA.
Permanent buildings constructed by the U.S. become property of the Philippines,
but shall be used by U.S. forces for the duration of their stay.
How long will EDCA last?
EDCA will have an initial 10-year term. Thereafter, it shall continue to be in force
unless terminated by the U.S. or the Philippines, with a one year's written notice.

How much money does the U.S. give to Philippines?


According to our research engine:
The U.S. Government gave a total of $197,036,510 to Philippines in 2012:
The aid was broken down in the following manner:
Economic
Child Survival and Health: $-420
Department of Defense Security Assistance: $75,490
Development Assistance: $79,721,515
Economic Support Fund/Security Support Assistance: $456,217
Global Health and Child Survival: $34,153,032
Millennium Challenge Corporation: $4,439,091
Narcotics Control: $4,286,840
Nonproliferation, Anti-Terrorism, Demining and Related: $9,549,582
Other Active Grant Programs: $6,403,834
Other Food Aid Programs: $11,824,000
Other State Assistance: $2,746,441
Other USAID Assistance: $8,619,065
Peace Corps: $3,388,723
Military
Military Assistance, Total: $31,373,100

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PRESIDENTIAL DECREE No. 1599


ESTABLISHING AN EXCLUSIVE ECONOMIC ZONE AND FOR
OTHER PURPOSES
WHEREAS, an exclusive economic zone extending to a distance of two hundred
nautical miles from the baselines from which the territorial sea is measured is
vital to the economic survival and development of the Republic of the
Philippines;
WHEREAS, such a zone is now a recognized principle of international law;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution, do hereby decree and
order:
Section 1. There is hereby established a zone to be known as the exclusive
economic zone of the Philippines. The exclusive economic zone shall extend to a
distance of two hundred nautical miles beyond and from the baselines from
which the territorial sea is measured: Provided, That, where the outer limits of
the zone as thus determined overlap the exclusive economic zone of an adjacent
or neighboring state, the common boundaries shall be determined by agreement
with the state concerned or in accordance with pertinent generally recognized
principles of international law on delimitation.
Sec. 2. Without prejudice to the rights of the Republic of the Philippines over it
territorial sea and continental shelf, it shall have and exercise in the exclusive
economic zone established herein the following;
(a) Sovereignty rights for the purpose of exploration and exploitation,
conservation and management of the natural resources, whether living or nonliving, both renewable and non-renewable, of the sea-bed, including the subsoil
and the superjacent waters, and with regard to other activities for the economic
exploitation and exploration of the resources of the zone, such as the production
of energy from the water, currents and winds;
(b) Exclusive rights and jurisdiction with respect to the establishment and
utilization of artificial islands, off-shore terminals, installations and structures, the
preservation of the marine environment, including the prevention and control of
pollution, and scientific research;
(c) Such other rights as are recognized by international law or state practice.
Sec. 3. Except in accordance with the terms of any agreement entered into with
the Republic of the Philippines or of any license granted by it or under authority
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by the Republic of the Philippines, no person shall, in relation to the exclusive


economic zone:
(a) explore or exploit any resources;
(b) carry out any search, excavation or drilling operations:
(c) conduct any research;
(d) construct, maintain or operate any artificial island, off-shore terminal,
installation or other structure or device; or
(e) perform any act or engage in any activity which is contrary to, or in
derogation of, the sovereign rights and jurisdiction herein provided.
Nothing herein shall be deemed a prohibition on a citizen of the Philippines,
whether natural or juridical, against the performance of any of the foregoing
acts, if allowed under existing laws.
Sec. 4. Other states shall enjoy in the exclusive economic zone freedoms with
respect to navigation and overflight, the laying of submarine cables and
pipelines, and other internationally lawful uses of the sea relating to navigation
and communications.
Sec. 5. (a) The President may authorize the appropriate government
office/agency to make and promulgate such rules and regulations which may be
deemed proper and necessary for carrying out the purposes of this degree.
(b) Any person who shall violate any provision of this decree or of any rule or
regulation promulgated hereunder and approved by the President shall be
subject to a fine which shall not be less than two thousand pesos (P2,000.00) nor
be more than one hundred thousand pesos (100,000.00) or imprisonment
ranging from six (6) months to ten (10) years, or both such fine and
imprisonment, in the discretion of the court. Vessels and other equipment or
articles used in connection therewith shall be subject to seizure and forfeiture.
Sec. 6. This Decree shall take effect thirty (30) days after publication in the
Official Gazette.
Done in the City of Manila, this 11th day of June, in the year of Our Lord,
nineteen hundred and seventy-eight.

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SAGUISAG V. OCHOA
January 12, 2016
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAADA, FRANCISCO "DODONG" NEMENZO,
JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE"
SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR.
CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIO,
Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL
DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY
GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES
NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS
PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE
TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA,
JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA,
AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO,
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY
PIO
LORENZO
BATINO,
AMBASSADOR
LOURDES
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YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE


UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR
STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON
EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL
PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONSKILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO
USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND
ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA) between the Republic of the Philippines
and the United States of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when they entered into EDCA with the U.S.,2 claiming that the instrument
violated multiple constitutional provisions.3 In reply, respondents argue that
petitioners lack standing to bring the suit. To support the legality of their actions,
respondents invoke the 1987 Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset the
basic parameters of the constitutional powers and roles of the President and the
Senate in respect of the above issues. A more detailed discussion of these
powers and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT:
DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive Power in the
President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong
katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o Pangalawang
Pangulo o Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at
ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito,
magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa
paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5
The 1987 Constitution has "vested the executive power in the President of the
Republic of the Philippines."6 While the vastness of the executive power that has
been consolidated in the person of the President cannot be expressed fully in one
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provision, the Constitution has stated the prime duty of the government, of
which the President is the head:
The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the Philippines, the power
to call upon the people to defend the State, and the President as Commander-inChief
The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with
the constitutional provision on national territory. Hence, the President of the
Philippines, as the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters embraced therein and
all other territories over which it has sovereignty or jurisdiction. These territories
consist of its terrestrial, fluvial, and aerial domains; including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas; and the
waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions.8
To carry out this important duty, the President is equipped with authority over
the Armed Forces of the Philippines (AFP),9 which is the protector of the people
and the state. The AFP's role is to secure the sovereignty of the State and the
integrity of the national territory.10 In addition, the Executive is constitutionally
empowered to maintain peace and order; protect life, liberty, and property; and
promote the general welfare.11
In recognition of these powers, Congress has specified that the President must
oversee, ensure, and reinforce our defensive capabilities against external and
internal threats12 and, in the same vein, ensure that the country is adequately
prepared for all national and local emergencies arising from natural and manmade disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the
President may call out the AFP to prevent or suppress instances of lawless
violence, invasion or rebellion,14 but not suspend the privilege of the writ of
habeas corpus for a period exceeding 60 days, or place the Philippines or any
part thereof under martial law exceeding that same span. In the exercise of
these powers, the President is also duty-bound to submit a report to Congress, in
person or in writing, within 48 hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus; and Congress may in
turn revoke the proclamation or suspension. The same provision provides for the
Supreme Court's review of the factual basis for the proclamation or suspension,
as well as the promulgation of the decision within 30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the conduct of
foreign relations.15 Since every state has the capacity to interact with and
engage in relations with other sovereign states,16 it is but logical that every
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state must vest in an agent the authority to represent its interests to those other
sovereign states.
The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act on
the basis of the best available information and can decide with decisiveness. x x
x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable
consequences.17
The role of the President in foreign affairs is qualified by the Constitution in that
the Chief Executive must give paramount importance to the sovereignty of the
nation, the integrity of its territory, its interest, and the right of the sovereign
Filipino people to self-determination.18 In specific provisions, the President's
power is also limited, or at least shared, as in Section 2 of Article II on the
conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial
review of executive acts; Sections 4 and 25 of Article XVIII on treaties and
international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and the role of
the Senate
Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however,
does not crystallize into absolute discretion to craft whatever instrument the
Chief Executive so desires. As previously mentioned, the Senate has a role in
ensuring that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval
of two-thirds of its members.
Previously, treaties under the 1973 Constitution required ratification by a
majority of the Batasang Pambansa,19 except in instances wherein the President
"may enter into international treaties or agreements as the national welfare and
interest may require."20 This left a large margin of discretion that the President
could use to bypass the Legislature altogether. This was a departure from the
1935 Constitution, which explicitly gave the President the power to enter into
treaties only with the concurrence of two-thirds of all the Members of the
Senate.21 The 1987 Constitution returned the Senate's power22 and, with it, the
legislative's traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties and international
agreements under the present Constitution is therefore shared with the Senate.
This shared role, petitioners claim, is bypassed by EDCA.
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II. HISTORICAL ANTECEDENTS OF EDCA


A. U.S. takeover of Spanish colonization and its military bases, and the transition
to Philippine independence
The presence of the U.S. military forces in the country can be traced to their
pivotal victory in the 1898 Battle of Manila Bay during the Spanish-American
War.24 Spain relinquished its sovereignty over the Philippine Islands in favor of
the U.S. upon its formal surrender a few months later.25 By 1899, the Americans
had consolidated a military administration in the archipelago.26
When it became clear that the American forces intended to impose colonial
control over the Philippine Islands, General Emilio Aguinaldo immediately led the
Filipinos into an all-out war against the U.S.27 The Filipinos were ultimately
defeated in the Philippine-American War, which lasted until 1902 and led to the
downfall of the first Philippine Republic.28 The Americans henceforth began to
strengthen their foothold in the country.29 They took over and expanded the
former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post
called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained
ground, the U.S. manifested the desire to maintain military bases and armed
forces in the country.31 The U.S. Congress later enacted the Hare-Hawes-Cutting
Act of 1933, which required that the proposed constitution of an independent
Philippines recognize the right of the U.S. to maintain the latter's armed forces
and military bases.32 The Philippine Legislature rejected that law, as it also gave
the U.S. the power to unilaterally designate any part of Philippine territory as a
permanent military or naval base of the U.S. within two years from complete
independence.33
The U.S. Legislature subsequently crafted another law called the TydingsMcDuffie Act or the Philippine Independence Act of 1934. Compared to the old
Hare-Hawes-Cutting Act, the new law provided for the surrender to the
Commonwealth Government of "all military and other reservations" of the U.S.
government in the Philippines, except "naval reservations and refueling
stations."34 Furthermore, the law authorized the U.S. President to enter into
negotiations for the adjustment and settlement of all questions relating to naval
reservations and fueling stations within two years after the Philippines would
have gained independence.35 Under the Tydings-McDuffie Act, the U.S. President
would proclaim the American withdrawal and surrender of sovereignty over the
islands 10 years after the inauguration of the new government in the
Philippines.36 This law eventually led to the promulgation of the 1935 Philippine
Constitution.
The original plan to surrender the military bases changed.37 At the height of the
Second World War, the Philippine and the U.S. Legislatures each passed
resolutions authorizing their respective Presidents to negotiate the matter of
retaining military bases in the country after the planned withdrawal of the U.S.38
Subsequently, in 1946, the countries entered into the Treaty of General
Relations, in which the U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the American
military bases in the country.39 This treaty eventually led to the creation of the
post-colonial legal regime on which would hinge the continued presence of U.S.
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military forces until 1991: the Military Bases Agreement (MBA) of 1947, the
Military Assistance Agreement of 1947, and the Mutual Defense Treaty (MDT) of
1951.40
B. Former legal regime on the presence of U.S. armed forces in the territory of an
independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries entered
into their first military arrangement pursuant to the Treaty of General Relations the 1947 MBA.41 The Senate concurred on the premise of "mutuality of security
interest,"42 which provided for the presence and operation of 23 U.S. military
bases in the Philippines for 99 years or until the year 2046.43 The treaty also
obliged the Philippines to negotiate with the U.S. to allow the latter to expand
the existing bases or to acquire new ones as military necessity might require.44
A number of significant amendments to the 1947 MBA were made.45 With
respect to its duration, the parties entered into the Ramos-Rusk Agreement of
1966, which reduced the term of the treaty from 99 years to a total of 44 years
or until 1991.46 Concerning the number of U.S. military bases in the country, the
Bohlen-Serrano Memorandum of Agreement provided for the return to the
Philippines of 17 U.S. military bases covering a total area of 117,075 hectares.47
Twelve years later, the U.S. returned Sangley Point in Cavite City through an
exchange of notes.48 Then, through the Romulo-Murphy Exchange of Notes of
1979, the parties agreed to the recognition of Philippine sovereignty over Clark
and Subic Bases and the reduction of the areas that could be used by the U.S.
military.49 The agreement also provided for the mandatory review of the treaty
every five years.50 In 1983, the parties revised the 1947 MBA through the
Romualdez-Armacost Agreement.51 The revision pertained to the operational use
of the military bases by the U.S. government within the context of Philippine
sovereignty,52 including the need for prior consultation with the Philippine
government on the former' s use of the bases for military combat operations or
the establishment of long-range missiles.53
Pursuant to the legislative authorization granted under Republic Act No. 9,54 the
President also entered into the 1947 Military Assistance Agreement55 with the
U.S. This executive agreement established the conditions under which U.S.
military assistance would be granted to the Philippines,56 particularly the
provision of military arms, ammunitions, supplies, equipment, vessels, services,
and training for the latter's defense forces.57 An exchange of notes in 1953
made it clear that the agreement would remain in force until terminated by any
of the parties.58
To further strengthen their defense and security relationship,59 the Philippines
and the U.S. next entered into the MDT in 1951. Concurred in by both the
Philippine60 and the U.S.61 Senates, the treaty has two main features: first, it
allowed for mutual assistance in maintaining and developing their individual and
collective capacities to resist an armed attack;62 and second, it provided for
their mutual self-defense in the event of an armed attack against the territory of
either party.63 The treaty was premised on their recognition that an armed
attack on either of them would equally be a threat to the security of the other.64
C. Current legal regime on the presence of U.S. armed forces in the country

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In view of the impending expiration of the 1947 MBA in 1991, the Philippines and
the U.S. negotiated for a possible renewal of their defense and security
relationship.65 Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for
their defense cooperation and the use of Philippine installations.66 One of the
proposed provisions included an arrangement in which U.S. forces would be
granted the use of certain installations within the Philippine naval base in
Subic.67 On 16 September 1991, the Senate rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting paucity of any
formal agreement dealing with the treatment of U.S. personnel in the Philippines
led to the suspension in 1995 of large-scale joint military exercises.69 In the
meantime, the respective governments of the two countries agreed70 to hold
joint exercises at a substantially reduced level.71 The military arrangements
between them were revived in 1999 when they concluded the first Visiting Forces
Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid
down the regulatory mechanism for the treatment of U.S. military and civilian
personnel visiting the country.74 It contains provisions on the entry and
departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the
importation and exportation of equipment, materials, supplies, and other pieces
of property owned by the U.S. government; and the movement of U.S. military
vehicles, vessels, and aircraft into and within the country.75 The Philippines and
the U.S. also entered into a second counterpart agreement (VFA II), which in turn
regulated the treatment of Philippine military and civilian personnel visiting the
U.S.76 The Philippine Senate concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started arriving in
Mindanao to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at
simulating joint military maneuvers pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics
Support Agreement to "further the interoperability, readiness, and effectiveness
of their respective military forces"80 in accordance with the MDT, the Military
Assistance Agreement of 1953, and the VFA.81 The new agreement outlined the
basic terms, conditions, and procedures for facilitating the reciprocal provision of
logistics support, supplies, and services between the military forces of the two
countries.82 The phrase "logistics support and services" includes billeting,
operations support, construction and use of temporary structures, and storage
services during an approved activity under the existing military arrangements.83
Already extended twice, the agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities
within certain "Agreed Locations" in the country. It was not transmitted to the
Senate on the executive's understanding that to do so was no longer
necessary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA)
and the U.S. Embassy exchanged diplomatic notes confirming the completion of
all necessary internal requirements for the agreement to enter into force in the
two countries.86
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According to the Philippine government, the conclusion of EDCA was the result of
intensive and comprehensive negotiations in the course of almost two years.87
After eight rounds of negotiations, the Secretary of National Defense and the U.S.
Ambassador to the Philippines signed the agreement on 28 April 2014.88
President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified
during the oral arguments90 that the Philippine and the U.S. governments had
yet to agree formally on the specific sites of the Agreed Locations mentioned in
the agreement.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in the
form of a treaty concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the
parties ordered to file their respective memoranda, the Senators adopted Senate
Resolution No. (SR) 105.91 The resolution expresses the "strong sense"92 of the
Senators that for EDCA to become valid and effective, it must first be transmitted
to the Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department committed
grave abuse of discretion in entering into EDCA in the form of an executive
agreement. For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down
EDCA for violating the Constitution. They stress that our fundamental law is
explicit in prohibiting the presence of foreign military forces in the country,
except under a treaty concurred in by the Senate. Before this Court may begin to
analyze the constitutionality or validity of an official act of a coequal branch of
government, however, petitioners must show that they have satisfied all the
essential requisites for judicial review.93
Distinguished from the general notion of judicial power, the power of judicial
review specially refers to both the authority and the duty of this Court to
determine whether a branch or an instrumentality of government has acted
beyond the scope of the latter's constitutional powers.94 As articulated in
Section 1, Article VIII of the Constitution, the power of judicial review involves the
power to resolve cases in which the questions concern the constitutionality or
validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation.95 In Angara v.
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Electoral Commission, this Court exhaustively discussed this "moderating power"


as part of the system of checks and balances under the Constitution. In our
fundamental law, the role of the Court is to determine whether a branch of
government has adhered to the specific restrictions and limitations of the latter's
power:96
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in the workings of the
various departments of the government. x x x. And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in
the exercise of its power to determine the law, and hence to declare executive
and legislative acts void if violative of the Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting
through their delegates to so provide, that instrument which is the expression of
their sovereignty however limited, has established a republican government
intended to operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they should
be in any living constitution. x x x. In our case, this moderating power is granted,
if not expressly, by clear implication from section 2 of article VIII of [the 1935]
Constitution.
The Constitution is a definition of the powers of government. Who is to determine
the nature, scope and extent of such powers? The Constitution itself has
provided for the instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. x x x x.
(Emphases supplied)
The power of judicial review has since been strengthened in the 1987
Constitution. The scope of that power has been extended to the determination of
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whether in matters traditionally considered to be within the sphere of


appreciation of another branch of government, an exercise of discretion has been
attended with grave abuse.97 The expansion of this power has made the political
question doctrine "no longer the insurmountable obstacle to the exercise of
judicial power or the impenetrable shield that protects executive and legislative
actions from judicial inquiry or review."98
This moderating power, however, must be exercised carefully and only if it
cannot be completely avoided. We stress that our Constitution is so incisively
designed that it identifies the spheres of expertise within which the different
branches of government shall function and the questions of policy that they shall
resolve.99 Since the power of judicial review involves the delicate exercise of
examining the validity or constitutionality of an act of a coequal branch of
government, this Court must continually exercise restraint to avoid the risk of
supplanting the wisdom of the constitutionally appointed actor with that of its
own.100
Even as we are left with no recourse but to bare our power to check an act of a
coequal branch of government - in this case the executive - we must abide by
the stringent requirements for the exercise of that power under the Constitution.
Demetria v. Alba101 and Francisco v. House of Representatives102 cite the
"pillars" of the limitations on the power of judicial review as enunciated in the
concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v.
Tennessee Valley Authority.103 Francisco104 redressed these "pillars" under the
following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as required by the
facts of the case
3. That judgment may not be sustained on some other ground
4. That there be actual injury sustained by the party by reason of the operation
of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it exercises its
power of judicial review.105 Guided by these pillars, it may invoke the power
only when the following four stringent requirements are satisfied: (a) there is an
actual case or controversy; (b) petitioners possess locus standi; (c) the question
of constitutionality is raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota of the case.106 Of these four, the first two
conditions will be the focus of our discussion.
1. Petitioners have shown the presence of an actual case or controversy.
The OSG maintains107 that there is no actual case or controversy that exists,
since the Senators have not been deprived of the opportunity to invoke the
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privileges of the institution they are representing. It contends that the


nonparticipation of the Senators in the present petitions only confirms that even
they believe that EDCA is a binding executive agreement that does not require
their concurrence.
It must be emphasized that the Senate has already expressed its position
through SR 105.108 Through the Resolution, the Senate has taken a position
contrary to that of the OSG. As the body tasked to participate in foreign affairs by
ratifying treaties, its belief that EDCA infringes upon its constitutional role
indicates that an actual controversy - albeit brought to the Court by nonSenators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the
present proceedings as basis for finding that there is no actual case or
controversy before us. We point out that the focus of this requirement is the
ripeness for adjudication of the matter at hand, as opposed to its being merely
conjectural or anticipatory.109 The case must involve a definite and concrete
issue involving real parties with conflicting legal rights and legal claims admitting
of specific relief through a decree conclusive in nature.110 It should not equate
with a mere request for an opinion or advice on what the law would be upon an
abstract, hypothetical, or contingent state of facts.111 As explained in Angara v.
Electoral Commission:112
[The] power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
(Emphases supplied)
We find that the matter before us involves an actual case or controversy that is
already ripe for adjudication. The Executive Department has already sent an
official confirmation to the U.S. Embassy that "all internal requirements of the
Philippines x x x have already been complied with."113 By this exchange of
diplomatic notes, the Executive Department effectively performed the last act
required under Article XII(l) of EDCA before the agreement entered into force.
Section 25, Article XVIII of the Constitution, is clear that the presence of foreign
military forces in the country shall only be allowed by virtue of a treaty concurred
in by the Senate. Hence, the performance of an official act by the Executive
Department that led to the entry into force of an executive agreement was
sufficient to satisfy the actual case or controversy requirement.
2. While petitioners Saguisag et. al., do not have legal standing, they
nonetheless raise issues involving matters of transcendental importance.
The question of locus standi or legal standing focuses on the determination of
whether those assailing the governmental act have the right of appearance to
bring the matter to the court for adjudication.114 They must show that they
have a personal and substantial interest in the case, such that they have
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sustained or are in immediate danger of sustaining, some direct injury as a


consequence of the enforcement of the challenged governmental act.115 Here,
"interest" in the question involved must be material - an interest that is in issue
and will be affected by the official act - as distinguished from being merely
incidental or general.116 Clearly, it would be insufficient to show that the law or
any governmental act is invalid, and that petitioners stand to suffer in some
indefinite way.117 They must show that they have a particular interest in
bringing the suit, and that they have been or are about to be denied some right
or privilege to which they are lawfully entitled, or that they are about to be
subjected to some burden or penalty by reason of the act complained of.118 The
reason why those who challenge the validity of a law or an international
agreement are required to allege the existence of a personal stake in the
outcome of the controversy is "to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits;
the Senate as a body has the requisite standing, but considering that it has not
formally filed a pleading to join the suit, as it merely conveyed to the Supreme
Court its sense that EDCA needs the Senate's concurrence to be valid, petitioners
continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as
citizens may dodge the requirement of having to establish a direct and personal
interest if they show that the act affects a public right.120 In arguing that they
have legal standing, they claim121 that the case they have filed is a concerned
citizen's suit. But aside from general statements that the petitions involve the
protection of a public right, and that their constitutional rights as citizens would
be violated, they fail to make any specific assertion of a particular public right
that would be violated by the enforcement of EDCA. For their failure to do so, the
present petitions cannot be considered by the Court as citizens' suits that would
justify a disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners122 aver that
the implementation of EDCA would result in the unlawful use of public funds.
They emphasize that Article X(1) refers to an appropriation of funds; and that the
agreement entails a waiver of the payment of taxes, fees, and rentals. During the
oral arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of implementing
the agreement.123 The OSG, on the other hand, maintains that petitioners
cannot sue as taxpayers.124 Respondent explains that EDCA is neither meant to
be a tax measure, nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act complained of directly
involves the illegal disbursement of public funds derived from taxation.125 Here,
those challenging the act must specifically show that they have sufficient
interest in preventing the illegal expenditure of public money, and that they will
sustain a direct injury as a result of the enforcement of the assailed act.126
Applying that principle to this case, they must establish that EDCA involves the
exercise by Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We
emphasize that a taxpayers' suit contemplates a situation in which there is
already an appropriation or a disbursement of public funds.128 A reading of
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Article X(l) of EDCA would show that there has been neither an appropriation nor
an authorization of disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the availability of
appropriated funds authorized for these purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would require the
disbursement of public funds, the money must come from appropriated funds
that are specifically authorized for this purpose. Under the agreement, before
there can even be a disbursement of public funds, there must first be a
legislative action. Until and unless the Legislature appropriates funds for EDCA,
or unless petitioners can pinpoint a specific item in the current budget that
allows expenditure under the agreement, we cannot at this time rule that there is
in fact an appropriation or a disbursement of funds that would justify the filing of
a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list
representatives have the standing to challenge the act of the Executive
Department, especially if it impairs the constitutional prerogatives, powers, and
privileges of their office. While they admit that there is no incumbent Senator
who has taken part in the present petition, they nonetheless assert that they also
stand to sustain a derivative but substantial injury as legislators. They argue that
under the Constitution, legislative power is vested in both the Senate and the
House of Representatives; consequently, it is the entire Legislative Department
that has a voice in determining whether or not the presence of foreign military
should be allowed. They maintain that as members of the Legislature, they have
the requisite personality to bring a suit, especially when a constitutional issue is
raised.
The OSG counters130 that petitioners do not have any legal standing to file the
suits concerning the lack of Senate concurrence in EDCA. Respondent
emphasizes that the power to concur in treaties and international agreements is
an "institutional prerogative" granted by the Constitution to the Senate.
Accordingly, the OSG argues that in case of an allegation of impairment of that
power, the injured party would be the Senate as an institution or any of its
incumbent members, as it is the Senate's constitutional function that is allegedly
being violated.
The legal standing of an institution of the Legislature or of any of its Members
has already been recognized by this Court in a number of cases.131 What is in
question here is the alleged impairment of the constitutional duties and powers
granted to, or the impermissible intrusion upon the domain of, the Legislature or
an institution thereof.132 In the case of suits initiated by the legislators
themselves, this Court has recognized their standing to question the validity of
any official action that they claim infringes the prerogatives, powers, and
privileges vested by the Constitution in their office.133 As aptly explained by
Justice Perfecto in Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that the latter act
within the bounds of the Constitution which, as representatives of the people,
they should uphold, unless they are to commit a flagrant betrayal of public trust.
They are representatives of the sovereign people and it is their sacred duty to
see to it that the fundamental law embodying the will of the sovereign people is
not trampled upon. (Emphases supplied)
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We emphasize that in a legislators' suit, those Members of Congress who are


challenging the official act have standing only to the extent that the alleged
violation impinges on their right to participate in the exercise of the powers of
the institution of which they are members.135 Legislators have the standing "to
maintain inviolate the prerogatives, powers, and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any
official action, which they claim infringes their prerogatives as legislators."136 As
legislators, they must clearly show that there was a direct injury to their persons
or the institution to which they belong.137
As correctly argued by respondent, the power to concur in a treaty or an
international agreement is an institutional prerogative granted by the
Constitution to the Senate, not to the entire Legislature. In Pimentel v. Office of
the Executive Secretary, this Court did not recognize the standing of one of the
petitioners therein who was a member of the House of Representatives. The
petition in that case sought to compel the transmission to the Senate for
concurrence of the signed text of the Statute of the International Criminal Court.
Since that petition invoked the power of the Senate to grant or withhold its
concurrence in a treaty entered into by the Executive Department, only then
incumbent Senator Pimentel was allowed to assert that authority of the Senate of
which he was a member.
Therefore, none of the initial petitioners in the present controversy has the
standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the
Executive for the following reasons.
In any case, petitioners raise issues involving matters of transcendental
importance.
Petitioners138 argue that the Court may set aside procedural technicalities, as
the present petition tackles issues that are of transcendental importance. They
point out that the matter before us is about the proper exercise of the Executive
Department's power to enter into international agreements in relation to that of
the Senate to concur in those agreements. They also assert that EDCA would
cause grave injustice, as well as irreparable violation of the Constitution and of
the Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the mere
fact that the present petitions involve matters of transcendental importance in
order to cure their inability to comply with the constitutional requirement of
standing. Respondent bewails the overuse of "transcendental importance" as an
exception to the traditional requirements of constitutional litigation. It stresses
that one of the purposes of these requirements is to protect the Supreme Court
from unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal stance towards
the requirement of legal standing, especially when paramount interest is
involved. Indeed, when those who challenge the official act are able to craft an
issue of transcendental significance to the people, the Court may exercise its
sound discretion and take cognizance of the suit. It may do so in spite of the
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inability of the petitioners to show that they have been personally injured by the
operation of a law or any other government act.
While this Court has yet to thoroughly delineate the outer limits of this doctrine,
we emphasize that not every other case, however strong public interest may be,
can qualify as an issue of transcendental importance. Before it can be impelled
to brush aside the essential requisites for exercising its power of judicial review,
it must at the very least consider a number of factors: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party
that has a more direct and specific interest in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties, together with the oral
arguments, shows that petitioners have presented serious constitutional issues
that provide ample justification for the Court to set aside the rule on standing.
The transcendental importance of the issues presented here is rooted in the
Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there
is a much stricter mechanism required before foreign military troops, facilities, or
bases may be allowed in the country. The DFA has already confirmed to the U.S.
Embassy that "all internal requirements of the Philippines x x x have already
been complied with."142 It behooves the Court in this instance to take a liberal
stance towards the rule on standing and to determine forthwith whether there
was grave abuse of discretion on the part of the Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes the duty to
defend the State, for which purpose he may use that power in the conduct of
foreign relations
Historically, the Philippines has mirrored the division of powers in the U.S.
government. When the Philippine government was still an agency of the
Congress of the U.S., it was as an agent entrusted with powers categorized as
executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be
exercised except by the department given the power.144
This divide continued throughout the different versions of the Philippine
Constitution and specifically vested the supreme executive power in the
Governor-General of the Philippines,145 a position inherited by the President of
the Philippines when the country attained independence. One of the principal
functions of the supreme executive is the responsibility for the faithful execution
of the laws as embodied by the oath of office.146 The oath of the President
prescribed by the 1987 Constitution reads thus:
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I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my
duties as President (or Vice-President or Acting President) of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to every man,
and consecrate myself to the service of the Nation. So help me God. (In case of
affirmation, last sentence will be omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation imposed
on the President, and not a separate grant of power.148 Section 1 7, Article VII of
the Constitution, expresses this duty in no uncertain terms and includes it in the
provision regarding the President's power of control over the executive
department, viz:
The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly
require this oath from the President. In the 1973 Constitution, for instance, the
provision simply gives the President control over the ministries.149 A similar
language, not in the form of the President's oath, was present in the 1935
Constitution, particularly in the enumeration of executive functions.150 By 1987,
executive power was codified not only in the Constitution, but also in the
Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in executive
power and is intimately related to the other executive functions. These functions
include the faithful execution of the law in autonomous regions;152 the right to
prosecute crimes;153 the implementation of transportation projects;154 the duty
to ensure compliance with treaties, executive agreements and executive
orders;155 the authority to deport undesirable aliens;156 the conferment of
national awards under the President's jurisdiction;157 and the overall
administration and control of the executive department.158
These obligations are as broad as they sound, for a President cannot function
with crippled hands, but must be capable of securing the rule of law within all
territories of the Philippine Islands and be empowered to do so within
constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has
enacted.159
More important, this mandate is self-executory by virtue of its being inherently
executive in nature.160 As Justice Antonio T. Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or execution of selfexecutory constitutional powers vested in the President, the rule-making power
of the President is not a delegated legislative power. The most important selfexecutory constitutional power of the President is the President's constitutional
duty and mandate to "ensure that the laws be faithfully executed." The rule is
that the President can execute the law without any delegation of power from the
legislature.
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The import of this characteristic is that the manner of the President's execution
of the law, even if not expressly granted by the law, is justified by necessity and
limited only by law, since the President must "take necessary and proper steps to
carry into execution the law."162 Justice George Malcolm states this principle in a
grand manner:163
The executive should be clothed with sufficient power to administer efficiently
the affairs of state. He should have complete control of the instrumentalities
through whom his responsibility is discharged. It is still true, as said by Hamilton,
that "A feeble executive implies a feeble execution of the government. A feeble
execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be in practice a bad government."
The mistakes of State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The Congress of the
United States clearly intended that the Governor-General's power should be
commensurate with his responsibility. The Congress never intended that the
Governor-General should be saddled with the responsibility of administering the
government and of executing the laws but shorn of the power to do so. The
interests of the Philippines will be best served by strict adherence to the basic
principles of constitutional government.
In light of this constitutional duty, it is the President's prerogative to do whatever
is legal and necessary for Philippine defense interests. It is no coincidence that
the constitutional provision on the faithful execution clause was followed by that
on the President's commander-in-chief powers,164 which are specifically granted
during extraordinary events of lawless violence, invasion, or rebellion. And this
duty of defending the country is unceasing, even in times when there is no state
of lawlesss violence, invasion, or rebellion. At such times, the President has full
powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithfulexecution clause of the Constitution to do nothing when the call of the moment
requires increasing the military's defensive capabilities, which could include
forging alliances with states that hold a common interest with the Philippines or
bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D.
Brion's Dissenting Opinion as the beginning of a "patent misconception."165 His
dissent argues that this approach taken in analyzing the President's role as
executor of the laws is preceded by the duty to preserve and defend the
Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to
appreciate the nuances of the analysis, if read holistically and in context. The
concept that the President cannot function with crippled hands and therefore can
disregard the need for Senate concurrence in treaties167 was never expressed or
implied. Rather, the appropriate reading of the preceding analysis shows that the
point being elucidated is the reality that the President's duty to execute the laws
and protect the Philippines is inextricably interwoven with his foreign affairs
powers, such that he must resolve issues imbued with both concerns to the full
extent of his powers, subject only to the limits supplied by law. In other words,
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apart from an expressly mandated limit, or an implied limit by virtue of


incompatibility, the manner of execution by the President must be given utmost
deference. This approach is not different from that taken by the Court in
situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority
to bypass constitutional safeguards and limits. In fact, it specifies what these
limitations are, how these limitations are triggered, how these limitations
function, and what can be done within the sphere of constitutional duties and
limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims
that the foreign relations power of the President should not be interpreted in
isolation.168 The analysis itself demonstrates how the foreign affairs function,
while mostly the President's, is shared in several instances, namely in Section 2
of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign
loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article
VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on
treaties and international agreements entered into prior to the Constitution and
on the presence of foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the
two major presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of
foreign affairs is not novel to the Court. The President's act of treating EDCA as
an executive agreement is not the principal power being analyzed as the
Dissenting Opinion seems to suggest. Rather, the preliminary analysis is in
reference to the expansive power of foreign affairs. We have long treated this
power as something the Courts must not unduly restrict. As we stated recently in
Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political questions,
and courts certainly possess the authority to construe or invalidate treaties and
executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government
is a foreign relations matter, the authority for which is demonstrably committed
by our Constitution not to the courts but to the political branches. In this case,
the Executive Department has already decided that it is to the best interest of
the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to
question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court
held that "[t]he President is the sole organ of the nation in its external relations,
and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations,
embarrassment - perhaps serious embarrassment - is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord
to the President a degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone involved. Moreover,
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he, not Congress, has the better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v.
Executive Secretary and Pimentel v. Executive Secretary; its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent in
Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act on
the basis of the best available information and can decide with decisiveness .... It
is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable
consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same perspective
and understanding, knowing full well the constitutional and legal repercussions of
any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military
bases, troops or facilities, except by way of a treaty concurred in by the Senate a clear limitation on the President's dual role as defender of the State and as sole
authority in foreign relations.
Despite the President's roles as defender of the State and sole authority in
foreign relations, the 1987 Constitution expressly limits his ability in instances
when it involves the entry of foreign military bases, troops or facilities. The initial
limitation is found in Section 21 of the provisions on the Executive Department:
"No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate." The specific
limitation is given by Section 25 of the Transitory Provisions, the full text of which
reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to
add to the basic requirements of a treaty under Section 21 of Article VII. This
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means that both provisions must be read as additional limitations to the


President's overarching executive function in matters of defense and foreign
relations.
3. The President, however, may enter into an executive agreement on foreign
military bases, troops, or facilities, if (a) it is not the instrument that allows the
presence of foreign military bases, troops, or facilities; or (b) it merely aims to
implement an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form of a
"treaty" duly concurred in by the Senate. They stress that the Constitution is
unambigous in mandating the transmission to the Senate of all international
agreements concluded after the expiration of the MBA in 1991 - agreements that
concern the presence of foreign military bases, troops, or facilities in the country.
Accordingly, petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its
members - with 1 against and 2 abstaining - says in SR 105171 that EDCA must
be submitted to the Senate in the form of a treaty for concurrence by at least
two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article
XVIII, Section 25) to support its position. Compared with the lone constitutional
provision that the Office of the Solicitor General (OSG) cites, which is Article XVIII,
Section 4(2), which includes the constitutionality of "executive agreement(s)"
among the cases subject to the Supreme Court's power of judicial review, the
Constitution clearly requires submission of EDCA to the Senate. Two specific
provisions versus one general provision means that the specific provisions
prevail. The term "executive agreement" is "a term wandering alone in the
Constitution, bereft of provenance and an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation
even added that the MDT, which the Executive claims to be partly implemented
through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105,
as well as with the comment on interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's
pronouncements on the powers of the President. When the Court validated the
concept of "executive agreement," it did so with full knowledge of the Senate's
role in concurring in treaties. It was aware of the problematique of distinguishing
when an international agreement needed Senate concurrence for validity, and
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when it did not; and the Court continued to validate the existence of "executive
agreements" even after the 1987 Constitution.172 This follows a long line of
similar decisions upholding the power of the President to enter into an executive
agreement.173
Second, the MDT has not been rendered obsolescent, considering that as late as
2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably
leads to the conclusion that it applies only to a proposed agreement between our
government and a foreign government, whereby military bases, troops, or
facilities of such foreign government would be "allowed" or would "gain entry"
Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This
wording signifies that the President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally restricted authority
pertains to the entry of the bases, troops, or facilities, and not to the activities to
be done after entry.
Under the principles of constitutional construction, of paramount consideration is
the plain meaning of the language expressed in the Constitution, or the verba
legis rule.175 It is presumed that the provisions have been carefully crafted in
order to express the objective it seeks to attain.176 It is incumbent upon the
Court to refrain from going beyond the plain meaning of the words used in the
Constitution. It is presumed that the framers and the people meant what they
said when they said it, and that this understanding was reflected in the
Constitution and understood by the people in the way it was meant to be
understood when the fundamental law was ordained and promulgated.177 As
this Court has often said:
We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood
in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus, these are the cases where the need for construction is
reduced to a minimum.178 (Emphases supplied)
It is only in those instances in which the constitutional provision is unclear,
ambiguous, or silent that further construction must be done to elicit its
meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180 we
reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The
proper interpretation therefore depends more on how it was understood by the
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people adopting it than in the framers' understanding thereof. (Emphases


supplied)
The effect of this statement is surprisingly profound, for, if taken literally, the
phrase "shall not be allowed in the Philippines" plainly refers to the entry of
bases, troops, or facilities in the country. The Oxford English Dictionary defines
the word "allow" as a transitive verb that means "to permit, enable"; "to give
consent to the occurrence of or relax restraint on (an action, event, or activity)";
"to consent to the presence or attendance of (a person)"; and, when with an
adverbial of place, "to permit (a person or animal) to go, come, or be in, out,
near, etc."181 Black's Law Dictionary defines the term as one that means "[t]o
grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition used to
indicate "place or position in space or anything having material extension: Within
the limits or bounds of, within (any place or thing)."183 That something is the
Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to the initial entry of
the foreign military bases, troops, or facilities. Once entry is authorized, the
subsequent acts are thereafter subject only to the limitations provided by the
rest of the Constitution and Philippine law, and not to the Section 25 requirement
of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This Court
stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word "activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in negotiation.
In this manner, visiting US forces may sojourn in Philippine territory for purposes
other than military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that "Balikatan 02-1," a "mutual antiterrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to combat itself-such as
the one subject of the instant petition, are indeed authorized.184 (Emphasis
supplied)
Moreover, the Court indicated that the Constitution continues to govern the
conduct of foreign military troops in the Philippines,185 readily implying the
legality of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive agreement,
since it merely involves "adjustments in detail" in the implementation of the MDT
and the VFA.186 It points out that there are existing treaties between the
Philippines and the U.S. that have already been concurred in by the Philippine
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Senate and have thereby met the requirements of the Constitution under Section
25. Because of the status of these prior agreements, respondent emphasizes
that EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's
application of verba legis construction to the words of Article XVIII, Section
25.187 It claims that the provision is "neither plain, nor that simple."188 To
buttress its disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947 MBA.189 Accordingly, this
position requires questioning the circumstances that led to the historical event,
and the meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not
inapplicable just because a provision has a specific historical context. In fact,
every provision of the Constitution has a specific historical context. The purpose
of constitutional and statutory construction is to set tiers of interpretation to
guide the Court as to how a particular provision functions. Verba legis is of
paramount consideration, but it is not the only consideration. As this Court has
often said:
We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood
in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus, these are the cases where the need for construction is
reduced to a minimum.190 (Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of terms. In this
case, the phrase being construed is "shall not be allowed in the Philippines" and
not the preceding one referring to "the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities." It is
explicit in the wording of the provision itself that any interpretation goes beyond
the text itself and into the discussion of the framers, the context of the
Constitutional Commission's time of drafting, and the history of the 1947 MBA.
Without reference to these factors, a reader would not understand those terms.
However, for the phrase "shall not be allowed in the Philippines," there is no
need for such reference. The law is clear. No less than the Senate understood
this when it ratified the VFA.
4. The President may generally enter into executive agreements subject to
limitations defined by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.
We discuss in this section why the President can enter into executive
agreements.
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It would be helpful to put into context the contested language found in Article
XVIII, Section 25. Its more exacting requirement was introduced because of the
previous experience of the country when its representatives felt compelled to
consent to the old MBA.191 They felt constrained to agree to the MBA in
fulfilment of one of the major conditions for the country to gain independence
from the U.S.192 As a result of that experience, a second layer of consent for
agreements that allow military bases, troops and facilities in the country is now
articulated in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that
we completely ignore the intent of our constitutional framers when they provided
for that additional layer, nor the vigorous statements of this Court that affirm the
continued existence of that class of international agreements called "executive
agreements."
The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction.193 That power
has been alluded to in our present and past Constitutions,194 in various
statutes,195 in Supreme Court decisions,196 and during the deliberations of the
Constitutional Commission.197 They cover a wide array of subjects with varying
scopes and purposes,198 including those that involve the presence of foreign
military forces in the country.199
As the sole organ of our foreign relations200 and the constitutionally assigned
chief architect of our foreign policy,201 the President is vested with the exclusive
power to conduct and manage the country's interface with other states and
governments. Being the principal representative of the Philippines, the Chief
Executive speaks and listens for the nation; initiates, maintains, and develops
diplomatic relations with other states and governments; negotiates and enters
into international agreements; promotes trade, investments, tourism and other
economic relations; and settles international disputes with other states.202
As previously discussed, this constitutional mandate emanates from the inherent
power of the President to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require further
Senate concurrence. The existence of this presidential power203 is so wellentrenched that Section 5(2)(a), Article VIII of the Constitution, even provides for
a check on its exercise. As expressed below, executive agreements are among
those official governmental acts that can be the subject of this Court's power of
judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are
defined as "international agreements embodying adjustments of detail carrying
out well-established national policies and traditions and those involving
arrangements of a more or less temporary nature."204 In Bayan Muna v. Romulo,
this Court further clarified that executive agreements can cover a wide array of
subjects that have various scopes and purposes.205 They are no longer limited
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to the traditional subjects that are usually covered by executive agreements as


identified in Eastern Sea Trading. The Court thoroughly discussed this matter in
the following manner:
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law wider, as to include
such subjects as human rights, the environment, and the sea. In fact, in the US
alone, the executive agreements executed by its President from 1980 to 2000
covered subjects such as defense, trade, scientific cooperation, aviation, atomic
energy, environmental cooperation, peace corps, arms limitation, and nuclear
safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international
agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the large variety of
executive agreements as such concluded from time to time. Hundreds of
executive agreements, other than those entered into under the trade-agreement
act, have been negotiated with foreign governments. . . . They cover such
subjects as the inspection of vessels, navigation dues, income tax on shipping
profits, the admission of civil air craft, custom matters and commercial relations
generally, international claims, postal matters, the registration of trademarks
and copyrights, etc .... (Emphases Supplied)
One of the distinguishing features of executive agreements is that their validity
and effectivity are not affected by a lack of Senate concurrence.206 This
distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with the approval of twothirds of the Senate. Executive agreements become binding through executive
action without the need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these
has never been seriously questioned by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the framers
specifically deliberated on whether the general term "international agreement"
included executive agreements, and whether it was necessary to include an
express proviso that would exclude executive agreements from the requirement
of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the
Court's ruling in Eastern Sea Trading, the Constitutional Commission members
ultimately decided that the term "international agreements" as contemplated in
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Section 21, Article VII, does not include executive agreements, and that a proviso
is no longer needed. Their discussion is reproduced below:207
MS. AQUINO: Madam President, first I would like a clarification from the
Committee. We have retained the words "international agreement" which I think
is the correct judgment on the matter because an international agreement is
different from a treaty. A treaty is a contract between parties which is in the
nature of international agreement and also a municipal law in the sense that the
people are bound. So there is a conceptual difference. However, I would like to
be clarified if the international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these
international negotiations stipulate the conditions which are necessary for the
agreement or whatever it may be to become valid or effective as regards the
parties.
MS. AQUINO: Would that depend on the parties or would that depend on the
nature of the executive agreement? According to common usage, there are two
types of executive agreement: one is purely proceeding from an executive act
which affects external relations independent of the legislative and the other is an
executive act in pursuance of legislative authorization. The first kind might take
the form of just conventions or exchanges of notes or protocol while the other,
which would be pursuant to the legislative authorization, may be in the nature of
commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to implement a
treaty already enforced or to determine the details for the implementation of the
treaty. We are speaking of executive agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover the
first kind of executive agreement which is just protocol or an exchange of notes
and this would be in the nature of reinforcement of claims of a citizen against a
country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for validity
insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide, unless the
Committee explains to us otherwise, an explicit proviso which would except
executive agreements from the requirement of concurrence of two-thirds of the
Members of the Senate. Unless I am enlightened by the Committee I propose
that tentatively, the sentence should read. "No treaty or international agreement
EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern
Sea Trading] might help clarify this:
The right of the executive to enter into binding agreements without the necessity
of subsequent Congressional approval has been confirmed by long usage. From
the earliest days of our history, we have entered into executive agreements
covering such subjects as commercial and consular relations, most favored
nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of this has
never been seriously questioned by our Courts.
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Agreements with respect to the registration of trademarks have been concluded


by the executive of various countries under the Act of Congress of March 3, 1881
(21 Stat. 502) . . . International agreements involving political issues or changes
of national policy and those involving international agreements of a permanent
character usually take the form of treaties. But international agreements
embodying adjustments of detail, carrying out well established national policies
and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.
MR. ROMULO:
agreements?

Is

the

Commissioner,

therefore,

excluding

the

executive

FR. BERNAS: What we are referring to, therefore, when we say international
agreements which need concurrence by at least two-thirds are those which are
permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive
agreements essentially but which are proceeding from the authorization of
Congress. If that is our understanding, then I am willing to withdraw that
amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need
subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of
"executive agreements" and that would make unnecessary any explicit proviso
on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements"
because I heard that these executive agreements must rely on treaties. In other
words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive
agreements being the implementation of treaties, details of which do not affect
the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam President?
Would 99 years be considered permanent? What would be the measure of
permanency? I do not conceive of a treaty that is going to be forever, so there
must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of
agreement should be included in a provision of the Constitution requiring the
concurrence of Congress.
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MR. GUINGONA: It depends on the concept of the executive agreement of which I


am not clear. If the executive agreement partakes of the nature of a treaty, then
it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within
the power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words
"international agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take
it, therefore, that as far as the Committee is concerned, the term "international
agreements" does not include the term "executive agreements" as read by the
Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section
21 was again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo.
These cases, both decided under the aegis of the present Constitution, quoted
Eastern Sea Trading in reiterating that executive agreements are valid and
binding even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence
because of the legal mandate with which they are concluded. As culled from the
afore-quoted deliberations of the Constitutional Commission, past Supreme Court
Decisions, and works of noted scholars,208 executive agreements merely involve
arrangements on the implementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the details of a treaty;209 (2)
pursuant to or upon confirmation by an act of the Legislature;210 or (3) in the
exercise of the President's independent powers under the Constitution.211 The
raison d'etre of executive agreements hinges on prior constitutional or legislative
authorizations.
The special nature of an executive agreement is not just a domestic variation in
international agreements. International practice has accepted the use of various
forms and designations of international agreements, ranging from the traditional
notion of a treaty - which connotes a formal, solemn instrument - to
engagements concluded in modem, simplified forms that no longer necessitate
ratification.212 An international agreement may take different forms: treaty, act,
protocol, agreement, concordat, compromis d'arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form.213
Consequently, under international law, the distinction between a treaty and an
international agreement or even an executive agreement is irrelevant for
purposes of determining international rights and obligations.
However, this principle does not mean that the domestic law distinguishing
treaties, international agreements, and executive agreements is relegated to a
mere variation in form, or that the constitutional requirement of Senate
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concurrence is demoted to an optional constitutional directive. There remain two


very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied
authorization under the Constitution, statutes, or treaties. The absence of these
precedents puts the validity and effectivity of executive agreements under
serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in
the performance of these rules.214 In turn, executive agreements cannot create
new international obligations that are not expressly allowed or reasonably
implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive
agreements. Treaties are products of the acts of the Executive and the
Senate215 unlike executive agreements, which are solely executive actions.216
Because of legislative participation through the Senate, a treaty is regarded as
being on the same level as a statute.217 If there is an irreconcilable conflict, a
later law or treaty takes precedence over one that is prior.218 An executive
agreement is treated differently. Executive agreements that are inconsistent with
either a law or a treaty are considered ineffective.219 Both types of international
agreement are nevertheless subject to the supremacy of the Constitution.220
This rule does not imply, though, that the President is given carte blanche to
exercise this discretion. Although the Chief Executive wields the exclusive
authority to conduct our foreign relations, this power must still be exercised
within the context and the parameters set by the Constitution, as well as by
existing domestic and international laws. There are constitutional provisions that
restrict or limit the President's prerogative in concluding international
agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine territory221
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, which must be pursuant to the authority
granted by Congress222
c. The grant of any tax exemption, which must be pursuant to a law concurred in
by a majority of all the Members of Congress223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans
that must be previously concurred in by the Monetary Board224
e. The authorization of the presence of foreign military bases, troops, or facilities
in the country must be in the form of a treaty duly concurred in by the
Senate.225
f. For agreements that do not fall under paragraph 5, the concurrence of the
Senate is required, should the form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an executive
agreement or a treaty.

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No court can tell the President to desist from choosing an executive agreement
over a treaty to embody an international agreement, unless the case falls
squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the Constitutional
Commission, they were aware that legally binding international agreements were
being entered into by countries in forms other than a treaty. At the same time, it
is clear that they were also keen to preserve the concept of "executive
agreements" and the right of the President to enter into such agreements.
What we can glean from the discussions of the Constitutional Commissioners is
that they understood the following realities:
1. Treaties, international agreements, and executive agreements are all
constitutional manifestations of the conduct of foreign affairs with their distinct
legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-parties,
which are in the nature of international agreements, and also of municipal laws
in the sense of their binding nature.226
b. International agreements are similar instruments, the provisions of which may
require the ratification of a designated number of parties thereto. These
agreements involving political issues or changes in national policy, as well as
those involving international agreements of a permanent character, usually take
the form of treaties. They may also include commercial agreements, which are
executive agreements essentially, but which proceed from previous authorization
by Congress, thus dispensing with the requirement of concurrence by the
Senate.227
c. Executive agreements are generally intended to implement a treaty already
enforced or to determine the details of the implementation thereof that do not
affect the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere executive
agreements must, by constitutional decree, be concurred in by at least two-thirds
of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military
troops, bases, or facilities - is particularly restricted. The requirements are that it
be in the form of a treaty concurred in by the Senate; that when Congress so
requires, it be ratified by a majority of the votes cast by the people in a national
referendum held for that purpose; and that it be recognized as a treaty by the
other contracting State.
4. Thus, executive agreements can continue to exist as a species of international
agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of
her constitutional authority and discretion when she chose to enter into the RPU.S. Non-Surrender Agreement in the form of an executive agreement, instead of
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a treaty, and in ratifying the agreement without Senate concurrence. The Court
en banc discussed this intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking
as it does of the nature of a treaty; hence, it must be duly concurred in by the
Senate. x x x x. Pressing its point, petitioner submits that the subject of the
Agreement does not fall under any of the subject-categories that xx x may be
covered by an executive agreement, such as commercial/consular relations,
most-favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There are no
hard and fast rules on the propriety of entering, on a given subject, into a treaty
or an executive agreement as an instrument of international relations. The
primary consideration in the choice of the form of agreement is the parties'
intent and desire to craft an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a treaty
or an executive agreement, as the parties in either international agreement each
labor under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution when a treaty is required, the Constitution does not classify any subject, like that
involving political issues, to be in the form of, and ratified as, a treaty. What the
Constitution merely prescribes is that treaties need the concurrence of the
Senate by a vote defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, "executive altogether."
The right of the President to enter into or ratify binding executive agreements
has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the Constitution.
At the end of the day, the President - by ratifying, thru her deputies, the nonsurrender agreement - did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger
measure of authority and wider discretion, subject only to the least amount of
checks and restrictions under the Constitution.229 The rationale behind this
power and discretion was recognized by the Court in Vinuya v. Executive
Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of
International Agreements and its Ratification, thus, correctly reflected the
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inherent powers of the President when it stated that the DFA "shall determine
whether an agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not
look into whether an international agreement should be in the form of a treaty or
an executive agreement, save in cases in which the Constitution or a statute
requires otherwise. Rather, in view of the vast constitutional powers and
prerogatives granted to the President in the field of foreign affairs, the task of the
Court is to determine whether the international agreement is consistent with the
applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it
merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a
law or a treaty that already deals with the presence of foreign military forces is
not at all unusual in this jurisdiction. In fact, the Court has already implicitly
acknowledged this practice in Lim v. Executive Secretary.231 In that case, the
Court was asked to scrutinize the constitutionality of the Terms of Reference of
the Balikatan 02-1 joint military exercises, which sought to implement the VFA.
Concluded in the form of an executive agreement, the Terms of Reference
detailed the coverage of the term "activities" mentioned in the treaty and settled
the matters pertaining to the construction of temporary structures for the U.S.
troops during the activities; the duration and location of the exercises; the
number of participants; and the extent of and limitations on the activities of the
U.S. forces. The Court upheld the Terms of Reference as being consistent with the
VFA. It no longer took issue with the fact that the Balikatan Terms of Reference
was not in the form of a treaty concurred in by the Senate, even if it dealt with
the regulation of the activities of foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an
executive agreement in an attempt to adjust the details of a provision of the VFA.
The Philippines and the U.S. entered into the Romulo-Kenney Agreement, which
undertook to clarify the detention of a U.S. Armed Forces member, whose case
was pending appeal after his conviction by a trial court for the crime of rape. In
testing the validity of the latter agreement, the Court precisely alluded to one of
the inherent limitations of an executive agreement: it cannot go beyond the
terms of the treaty it purports to implement. It was eventually ruled that the
Romulo-Kenney Agreement was "not in accord" with the VFA, since the former
was squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered the
Secretary of Foreign Affairs to comply with the VFA and "forthwith negotiate with
the United States representatives for the appropriate agreement on detention
facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA.
"233
Culling from the foregoing discussions, we reiterate the
pronouncements to guide us in resolving the present controversy:

following

1. Section 25, Article XVIII of the Constitution, contains stringent requirements


that must be fulfilled by the international agreement allowing the presence of
foreign military bases, troops, or facilities in the Philippines: (a) the agreement
must be in the form of a treaty, and (b) it must be duly concurred in by the
Senate.
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2. If the agreement is not covered by the above situation, then the President may
choose the form of the agreement (i.e., either an executive agreement or a
treaty), provided that the agreement dealing with foreign military bases, troops,
or facilities is not the principal agreement that first allows their entry or presence
in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations, and
standards set by the law and/or treaty that the former purports to implement;
and must not unduly expand the international obligation expressly mentioned or
necessarily implied in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well as
with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive
agreement, respondents carry the burden of proving that it is a mere
implementation of existing laws and treaties concurred in by the Senate. EDCA
must thus be carefully dissected to ascertain if it remains within the legal
parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework of the MDT and
the VFA
The starting point of our analysis is the rule that "an executive agreement xx x
may not be used to amend a treaty."234 In Lim v. Executive Secretary and in
Nicolas v. Romulo, the Court approached the question of the validity of executive
agreements by comparing them with the general framework and the specific
provisions of the treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized by
studying "the framework of the treaty antecedents to which the Philippines
bound itself,"235 i.e., the MDT and the VFA. The Court proceeded to examine the
extent of the term "activities" as contemplated in Articles 1236 and II237 of the
VFA. It later on found that the term "activities" was deliberately left undefined
and ambiguous in order to permit "a wide scope of undertakings subject only to
the approval of the Philippine government"238 and thereby allow the parties "a
certain leeway in negotiation."239 The Court eventually ruled that the Terms of
Reference fell within the sanctioned or allowable activities, especially in the
context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the
provisions of the VFA on custody and detention to ascertain the validity of the
Romulo-Kenney Agreement.240 It eventually found that the two international
agreements were not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the U.S. Embassy
Compound and guarded by U.S. military personnel, instead of by Philippine
authorities. According to the Court, the parties "recognized the difference
between custody during the trial and detention after conviction."241 Pursuant to
Article V(6) of the VFA, the custody of a U.S. military personnel resides with U.S.
military authorities during trial. Once there is a finding of guilt, Article V(l0)
requires that the confinement or detention be "by Philippine authorities."

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Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially
modifies or amends the VFA"242 and follows with an enumeration of the
differences between EDCA and the VFA. While these arguments will be rebutted
more fully further on, an initial answer can already be given to each of the
concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as the
VFA does, but allows temporary stationing on a rotational basis of U.S. military
personnel and their contractors in physical locations with permanent facilities
and pre-positioned military materiel.
This argument does not take into account that these permanent facilities, while
built by U.S. forces, are to be owned by the Philippines once constructed.243
Even the VFA allowed construction for the benefit of U.S. forces during their
temporary visits.
The second difference stated by the dissent is that EDCA allows the
prepositioning of military materiel, which can include various types of warships,
fighter planes, bombers, and vessels, as well as land and amphibious vehicles
and their corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels,
and aircraft to be brought into the country. Articles VII and VIII of the VFA
contemplates that U.S. equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of the U.S. Armed
Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in
connection with activities under the VFA. These provisions likewise provide for
the waiver of the specific duties, taxes, charges, and fees that correspond to
these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA
contemplates the entry of troops for training exercises, whereas EDCA allows the
use of territory for launching military and paramilitary operations conducted in
other states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes
that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or
had a martial character, and were therefore not contemplated by the VFA.246
This Court's jurisprudence however established in no uncertain terms that
combat-related activities, as opposed to actual combat, were allowed under the
MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities as opposed to combat itself such as the
one subject of the instant petition, are indeed authorized.247
Hence, even if EDCA was borne of military necessity, it cannot be said to have
strayed from the intent of the VFA since EDCA's combat-related components are
allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are.
Both the VFA and EDCA deal with the presence of U.S. forces within the
Philippines, but make no mention of being platforms for activity beyond
Philippine territory. While it may be that, as applied, military operations under
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either the VFA or EDCA would be carried out in the future the scope of judicial
review does not cover potential breaches of discretion but only actual
occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on
the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not
contemplated in the VFA or the MDT: Agreed Locations, Contractors, Prepositioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully and individually in
the latter analysis of EDCA's provisions. However, it must already be clarified
that the terms and details used by an implementing agreement need not be
found in the mother treaty. They must be sourced from the authority derived
from the treaty, but are not necessarily expressed word-for-word in the mother
treaty. This concern shall be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not
have provisions that may be construed as a restriction on or modification of
obligations found in existing statues, including the jurisdiction of courts, local
autonomy, and taxation. Implied in this argument is that EDCA contains such
restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of EDCA.
Both the VFA and EDCA ensure Philippine jurisdiction in all instances
contemplated by both agreements, with the exception of those outlined by the
VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes
are assumed by the government as will be discussed later on. This fact does not,
therefore, produce a diminution of jurisdiction on the part of the Philippines, but
rather a recognition of sovereignty and the rights that attend it, some of which
may be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with
those of the MDT and the VFA, which are the two treaties from which EDCA
allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized activities" under EDCA:
(1) U.S. personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT
and the VFA. It explains that EDCA articulates the principle of defensive
preparation embodied in Article II of the MDT; and seeks to enhance the
defensive, strategic, and technological capabilities of both parties pursuant to
the objective of the treaty to strengthen those capabilities to prevent or resist a
possible armed attack. Respondent also points out that EDCA simply implements
Article I of the VFA, which already allows the entry of U.S. troops and personnel
into the country. Respondent stresses this Court's recognition in Lim v. Executive
Secretary that U.S. troops and personnel are authorized to conduct activities that
promote the goal of maintaining and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely
implement the MDT. According to them, the treaty does not specifically authorize
the entry of U.S. troops in the country in order to maintain and develop the
individual and collective capacities of both the Philippines and the U.S. to resist
an armed attack. They emphasize that the treaty was concluded at a time when
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there was as yet no specific constitutional prohibition on the presence of foreign


military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA.
They assert that the agreement covers only short-term or temporary visits of
U.S. troops "from time to time" for the specific purpose of combined military
exercises with their Filipino counterparts. They stress that, in contrast, U.S.
troops are allowed under EDCA to perform activities beyond combined military
exercises, such as those enumerated in Articles 111(1) and IV(4) thereof.
Furthermore, there is some degree of permanence in the presence of U.S. troops
in the country, since the effectivity of EDCA is continuous until terminated. They
proceed to argue that while troops have a "rotational" presence, this scheme in
fact fosters their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory is
already allowed under the VFA
We shall first deal with the recognition under EDCA of the presence in the
country of three distinct classes of individuals who will be conducting different
types of activities within the Agreed Locations: (1) U.S. military personnel; (2)
U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to them as
follows:
"United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities
approved by the Philippines, as those terms are defined in the VFA.252
"United States forces" means the entity comprising United States personnel and
all property, equipment, and materiel of the United States Armed Forces present
in the territory of the Philippines.253
"United States contractors" means companies and firms, and their employees,
under contract or subcontract to or on behalf of the United States Department of
Defense. United States contractors are not included as part of the definition of
United States personnel in this Agreement, including within the context of the
VFA.254
United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of
the Philippines without restriction as to choice of contractor, supplier, or person
who provides such materiel, supplies, equipment, or services. Such contracts
shall be solicited, awarded, and administered in accordance with the laws and
regulations of the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement does
not deal with the entry into the country of U.S. personnel and contractors per se.
While Articles I(l)(b)256 and II(4)257 speak of "the right to access and use" the
Agreed Locations, their wordings indicate the presumption that these groups
have already been allowed entry into Philippine territory, for which, unlike the
VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes
to the VFA in describing U.S. personnel, a term defined under Article I of the
treaty as follows:

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As used in this Agreement, "United States personnel" means United States


military and civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government. Within this definition:
1. The term "military personnel" refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals who are neither nationals of
nor ordinarily resident in the Philippines and who are employed by the United
States armed forces or who are accompanying the United States armed forces,
such as employees of the American Red Cross and the United Services
Organization.258
Article II of EDCA must then be read with Article III of the VFA, which provides for
the entry accommodations to be accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
3. The following documents only, which shall be required in respect of United
States military personnel who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and departure of the
Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S.
military and civilian personnel to be "temporarily in the Philippines," so long as
their presence is "in connection with activities approved by the Philippine
Government." The Philippines, through Article III, even guarantees that it shall
facilitate the admission of U.S. personnel into the country and grant exemptions
from passport and visa regulations. The VFA does not even limit their temporary
presence to specific locations.
Based on the above provisions, the admission and presence of U.S. military and
civilian personnel in Philippine territory are already allowed under the VFA, the
treaty supposedly being implemented by EDCA. What EDCA has effectively done,
in fact, is merely provide the mechanism to identify the locations in which U.S.
personnel may perform allowed activities pursuant to the VFA. As the
implementing agreement, it regulates and limits the presence of U.S. personnel
in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors into
Philippine territory; their entry must be sourced from extraneous Philippine
statutes and regulations for the admission of alien employees or business
persons.
Of the three aforementioned classes of individuals who will be conducting certain
activities within the Agreed Locations, we note that only U.S. contractors are not
explicitly mentioned in the VFA. This does not mean, though, that the recognition
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of their presence under EDCA is ipso facto an amendment of the treaty, and that
there must be Senate concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely grant them the right of access to,
and the authority to conduct certain activities within the Agreed Locations. Since
Article II(3) of EDCA specifically leaves out U.S. contractors from the coverage of
the VFA, they shall not be granted the same entry accommodations and
privileges as those enjoyed by U.S. military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country.259 We emphasize that the
admission of aliens into Philippine territory is "a matter of pure permission and
simple tolerance which creates no obligation on the part of the government to
permit them to stay."260 Unlike U.S. personnel who are accorded entry
accommodations, U.S. contractors are subject to Philippine immigration laws.261
The latter must comply with our visa and passport regulations262 and prove that
they are not subject to exclusion under any provision of Philippine immigration
laws.263 The President may also deny them entry pursuant to his absolute and
unqualified power to prohibit or prevent the admission of aliens whose presence
in the country would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel or
deport U.S. contractors265 as may be necessitated by national security, public
safety, public health, public morals, and national interest.266 They may also be
deported if they are found to be illegal or undesirable aliens pursuant to the
Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article
111(5) of the VFA requires a request for removal from the Philippine government
before a member of the U.S. personnel may be "dispos[ed] xx x outside of the
Philippines."
c. Authorized activities of U.S. military and civilian personnel within Philippine
territory are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and the VFA
that pertain to the activities in which U.S. military and civilian personnel may
engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their
individual and collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and
whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external armed
attack in the Pacific.
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VISITING FORCES AGREEMENT


Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;
Noting that from time to time elements of the United States armed forces may
visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United States
military and civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government. Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to
ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other similar
charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement
of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as
necessary. x x x (Emphases Supplied)

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Manifest in these provisions is the abundance of references to the creation of


further "implementing arrangements" including the identification of "activities [to
be] approved by the Philippine Government." To determine the parameters of
these implementing arrangements and activities, we referred to the content,
purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries
shall engage in joint activities, so that they can maintain and develop their
defense capabilities. The wording itself evidently invites a reasonable
construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation269 and the subsequent
practice270 of the parties show that the MDT independently allows joint military
exercises in the country. Lim v. Executive Secretary271 and Nicolas v. Romulo272
recognized that Balikatan exercises, which are activities that seek to enhance
and develop the strategic and technological capabilities of the parties to resist an
armed attack, "fall squarely under the provisions of the RP-US MDT."273 In Lim,
the Court especially noted that the Philippines and the U.S. continued to conduct
joint military exercises even after the expiration of the MBA and even before the
conclusion of the VFA.274 These activities presumably related to the Status of
Forces Agreement, in which the parties agreed on the status to be accorded to
U.S. military and civilian personnel while conducting activities in the Philippines
in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT that these joint
activities may be conducted on Philippine or on U.S. soil. The article expressly
provides that the term armed attack includes "an armed attack on the
metropolitan territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the
Pacific." Surely, in maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately and jointly by selfhelp and mutual aid, in the territories of the contracting parties. It is reasonable
to conclude that the assessment of defense capabilities would entail
understanding the terrain, wind flow patterns, and other environmental factors
unique to the Philippines.
It would also be reasonable to conclude that a simulation of how to respond to
attacks in vulnerable areas would be part of the training of the parties to
maintain and develop their capacity to resist an actual armed attack and to test
and validate the defense plan of the Philippines. It is likewise reasonable to
imagine that part of the training would involve an analysis of the effect of the
weapons that may be used and how to be prepared for the eventuality. This
Court recognizes that all of this may require training in the area where an armed
attack might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of the
VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian
personnel in the Philippines is "in connection with activities approved by the
Philippine Government." While the treaty does not expressly enumerate or detail
the nature of activities of U.S. troops in the country, its Preamble makes explicit
references to the reaffirmation of the obligations of both countries under the
MDT. These obligations include the strengthening of international and regional
security in the Pacific area and the promotion of common security interests.
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The Court has already settled in Lim v. Executive Secretary that the phrase
"activities approved by the Philippine Government" under Article I of the VFA was
intended to be ambiguous in order to afford the parties flexibility to adjust the
details of the purpose of the visit of U.S. personnel.276 In ruling that the Terms of
Reference for the Balikatan Exercises in 2002 fell within the context of the treaty,
this Court explained:
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word "activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in negotiation.
In this manner, visiting US forces may sojourn in Philippine territory for purposes
other than military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that "Balikatan 02-1," a "mutual antiterrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself- such as
the one subject of the instant petition, are indeed authorized. (Emphases
Supplied)
The joint report of the Senate committees on foreign relations and on national
defense and security further explains the wide range and variety of activities
contemplated in the VFA, and how these activities shall be identified:277
These joint exercises envisioned in the VFA are not limited to combat-related
activities; they have a wide range and variety. They include exercises that will
reinforce the AFP's ability to acquire new techniques of patrol and surveillance to
protect the country's maritime resources; sea-search and rescue operations to
assist ships in distress; and disaster-relief operations to aid the civilian victims of
natural calamities, such as earthquakes, typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in aircraft
maintenance and equipment repair; civic-action projects; and consultations and
meetings of the Philippine-U.S. Mutual Defense Board. It is at the level of the
Mutual Defense Board-which is headed jointly by the Chief of Staff of the AFP and
the Commander in Chief of the U.S. Pacific Command-that the VFA exercises are
planned. Final approval of any activity involving U.S. forces is, however,
invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what activities will
be conducted between the armed forces of the U.S. and the Philippines. The VFA
regulates and provides the legal framework for the presence, conduct and legal
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status of U.S. personnel while they are in the country for visits, joint exercises
and other related activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report of the
Senate committees on foreign relations and on national defense and security,
and the ruling of this Court in Lim is that the "activities" referred to in the treaty
are meant to be specified and identified infurther agreements. EDCA is one such
agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved
activities of U.S. personnel referred to in the VFA. EDCA allows U.S. military and
civilian personnel to perform "activities approved by the Philippines, as those
terms are defined in the VFA"278 and clarifies that these activities include those
conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other activities as
may be agreed upon by the Parties279
2. Training; transit; support and related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and such other
activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations for construction
activities and other types of activity, including alterations and improvements
thereof281
4. Exercise of all rights and authorities within the Agreed Locations that are
necessary for their operational control or defense, including the adoption of
apfropriate measures to protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities283
6. Operation of their own telecommunication systems, including the utilization of
such means and services as are required to ensure the full ability to operate
telecommunication systems, as well as the use of the necessary radio spectrum
allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities is to
maintain and develop, jointly and by mutual aid, the individual and collective
capacities of both countries to resist an armed attack. It further states that the
activities are in furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those under the Terms
of Reference285 mentioned in Lim. Both EDCA and the Terms of Reference
authorize the U.S. to perform the following: (a) participate in training exercises;
(b) retain command over their forces; (c) establish temporary structures in the
country; (d) share in the use of their respective resources, equipment and other
assets; and (e) exercise their right to self-defense. We quote the relevant portion
of the Terms and Conditions as follows:286
I. POLICY LEVEL
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xxxx
No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing
may be set up for use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors
under the authority of the Chief of Staff, AFP. In no instance will US Forces
operate independently during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective forces under the overall
authority of the Exercise Co-Directors. RP and US participants shall comply with
operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more than
six months, with the projected participation of 660 US personnel and 3,800 RP
Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up
and terminate the Exercise and other activities within the six month Exercise
period.
The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on
the Island of Basilan. Further advising, assisting and training exercises shall be
conducted in Malagutay and the Zamboanga area. Related activities in Cebu will
be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to their
right of self-defense.
These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising
and training of RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air
traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxxx

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a. RP and US participating forces may share, in accordance with their respective


laws and regulations, in the use of their resources, equipment and other assets.
They will use their respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the MDT
and the VFA, we find that EDCA has remained within the parameters set in these
two treaties. Just like the Terms of Reference mentioned in Lim, mere
adjustments in detail to implement the MDT and the VFA can be in the form of
executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA is no
longer consistent with the temporary nature of the visits as contemplated in the
VFA. They point out that Article XII(4) of EDCA has an initial term of 10 years, a
term automatically renewed unless the Philippines or the U.S. terminates the
agreement. According to petitioners, such length of time already has a badge of
permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in
her Concurring and Dissenting Opinion that the VFA contemplated mere
temporary visits from U.S. forces, whereas EDCA allows an unlimited period for
U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting
itself to 10 years of effectivity. Although this term is automatically renewed, the
process for terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period. Clearly, this method does
not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by
chance that the VFA does not include a maximum time limit with respect to the
presence of U.S. personnel in the country. We construe this lack of specificity as a
deliberate effort on the part of the Philippine and the U.S. governments to leave
out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional
concurrence of the Senate in the entire text of the VFA as an implicit grant to the
President of a margin of appreciation in determining the duration of the
"temporary" presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is
"more permanent" in nature.289 However, this argument has not taken root by
virtue of a simple glance at its provisions on the effectivity period. EDCA does
not grant permanent bases, but rather temporary rotational access to facilities
for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access
to facilities of the Armed Forces of the Philippines but not permanent bases
which are prohibited under the Philippine Constitution - with the result of
reducing response time should an external threat from a common adversary
crystallize.290
EDCA is far from being permanent in nature compared to the practice of states
as shown in other defense cooperation agreements. For example, Article XIV(l) of
the U.S.-Romania defense agreement provides the following:
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This Agreement is concluded for an indefinite period and shall enter into force in
accordance with the internal laws of each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may be
terminated by written notification by either Party and in that event it terminates
2 years after the receipt of the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes
A and B, shall become effective on the date of the last signature affixed below
and shall remain in force until terminated by the Parties, provided that it may be
terminated by either Party upon 180 days written notice of its intention to do so
to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement
provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall
continue in force, but may be terminated by either Party at any time upon one
year's written notice to the other Party through diplomatic channels. (emphasis
supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term
less than half of that is provided in the latter agreement. This means that EDCA
merely follows the practice of other states in not specifying a non-extendible
maximum term. This practice, however, does not automatically grant a badge of
permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that
its effectivity is for an initial term of 10 years, which is far shorter than the terms
of effectivity between the U.S. and other states. It is simply illogical to conclude
that the initial, extendible term of 10 years somehow gives EDCA provisions a
permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of the
President who, as Commander-in-Chief of our armed forces, is the principal
strategist of the nation and, as such, duty-bound to defend our national
sovereignty and territorial integrity;291 who, as chief architect of our foreign
relations, is the head policymaker tasked to assess, ensure, and protect our
national security and interests;292 who holds the most comprehensive and most
confidential information about foreign countries293 that may affect how we
conduct our external affairs; and who has unrestricted access to highly classified
military intelligence data294 that may threaten the life of the nation. Thus, if
after a geopolitical prognosis of situations affecting the country, a belief is
engendered that a much longer period of military training is needed, the
President must be given ample discretion to adopt necessary measures including
the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we
acknowledge that the President may not always be able to candidly and openly
discuss the complete situation being faced by the nation. The Chief Executive's
hands must not be unduly tied, especially if the situation calls for crafting
programs and setting timelines for approved activities. These activities may be
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necessary for maintaining and developing our capacity to resist an armed attack,
ensuring our national sovereignty and territorial integrity, and securing our
national interests. If the Senate decides that the President is in the best position
to define in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy
decision. If the Senate feels that there is no need to set a time limit to these
visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the
extent of the "temporary" nature of the visits of U.S. personnel does not suggest
that the duration to which the President may agree is unlimited. Instead, the
boundaries of the meaning of the term temporary in Article I of the treaty must
be measured depending on the purpose of each visit or activity.295 That purpose
must be analyzed on a case-by-case basis depending on the factual
circumstances surrounding the conclusion of the implementing agreement. While
the validity of the President's actions will be judged under less stringent
standards, the power of this Court to determine whether there was grave abuse
of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within Philippine territory who were legitimately permitted to enter the country independent of EDCA - are
subject to relevant Philippine statutes and regulations and must be consistent
with the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's purported
practice of hiring private security contractors in other countries. They claim that
these contractors - one of which has already been operating in Mindanao since
2004 - have been implicated in incidents or scandals in other parts of the globe
involving rendition, torture and other human rights violations. They also assert
that these contractors employ paramilitary forces in other countries where they
are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only
the following activities:
1. Training; transit; support and related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and such other
activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal of
such equipment, supplies and materiel298
3. Carrying out of matters in accordance with, and to the extent permissible
under, U.S. laws, regulations, and policies299
EDCA requires that all activities within Philippine territory be in accordance with
Philippine law. This means that certain privileges denied to aliens are likewise
denied to foreign military contractors. Relevantly, providing security300 and
carrying, owning, and possessing firearms301 are illegal for foreign civilians.

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The laws in place already address issues regarding the regulation of contractors.
In the 2015 Foreign Investment Negative list,302 the Executive Department has
already identified corporations that have equity restrictions in Philippine
jurisdiction. Of note is No. 5 on the list - private security agencies that cannot
have any foreign equity by virtue of Section 4 of Republic Act No. 5487;303 and
No. 15, which regulates contracts for the construction of defense-related
structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must
subscribe to corporate and civil requirements imposed by the law, depending on
the entity's corporate structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the
activities of U.S. contractors has been clear even to some of the present
members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of
spilling fuel in the waters off Manila Bay.304 The Senate Committee on Foreign
Relations and the Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations by the
contractor.305 The U.S. Navy investigated the contractor and promised stricter
guidelines to be imposed upon its contractors.306 The statement attributed to
Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet that U.S. Navy contractors are bound by Philippine laws - is of particular
relevance. The statement acknowledges not just the presence of the contractors,
but also the U.S. position that these contractors are bound by the local laws of
their host state. This stance was echoed by other U.S. Navy representatives.307
This incident simply shows that the Senate was well aware of the presence of
U.S. contractors for the purpose of fulfilling the terms of the VFA. That they are
bound by Philippine law is clear to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted access to the
Agreed Locations, all their activities must be consistent with Philippine laws and
regulations and pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the Court
enough justification to strike down EDCA. In Lim v. Executive Secretary, we have
already explained that we cannot take judicial notice of claims aired in news
reports, "not because of any issue as to their truth, accuracy, or impartiality, but
for the simple reason that facts must be established in accordance with the rules
of evidence."308 What is more, we cannot move one step ahead and speculate
that the alleged illegal activities of these contractors in other countries would
take place in the Philippines with certainty. As can be seen from the above
discussion, making sure that U.S. contractors comply with Philippine laws is a
function of law enforcement. EDCA does not stand in the way of law
enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from
the coverage of the VFA. As visiting aliens, their entry, presence, and activities
are subject to all laws and treaties applicable within the Philippine territory. They
may be refused entry or expelled from the country if they engage in illegal or
undesirable activities. There is nothing that prevents them from being detained
in the country or being subject to the jurisdiction of our courts. Our penal
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laws,309 labor laws,310 and immigrations laws311 apply to them and therefore
limit their activities here. Until and unless there is another law or treaty that
specifically deals with their entry and activities, their presence in the country is
subject to unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled military facilities
and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S.
military bases through the "euphemistically" termed "Agreed Locations. "312
Alluding to the definition of this term in Article II(4) of EDCA, they point out that
these locations are actually military bases, as the definition refers to facilities
and areas to which U.S. military forces have access for a variety of purposes.
Petitioners claim that there are several badges of exclusivity in the use of the
Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a "return" of
these areas once they are no longer needed by U.S. forces, indicating that there
would be some transfer of use. Second, Article IV(4) ofEDCA talks about
American forces' unimpeded access to the Agreed Locations for all matters
relating to the prepositioning and storage of U.S. military equipment, supplies,
and materiel. Third, Article VII of EDCA authorizes U.S. forces to use public
utilities and to operate their own telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of EDCA
by presenting so-called "badges of exclusivity," despite the presence of contrary
provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the use of
the word "return" is within the context of a lengthy provision. The provision as a
whole reads as follows:
The United States shall return to the Philippines any Agreed Locations, or any
portion thereof, including non-relocatable structures and assemblies constructed,
modified, or improved by the United States, once no longer required by United
States forces for activities under this Agreement. The Parties or the Designated
Authorities shall consult regarding the terms of return of any Agreed Locations,
including possible compensation for improvements or construction.
The context of use is "required by United States forces for activities under this
Agreement." Therefore, the return of an Agreed Location would be within the
parameters of an activity that the Mutual Defense Board (MDB) and the Security
Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to
its return of the Agreed Location would be based on the authority given to it by a
joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM
with representatives from the Philippines' Department of National Defense and
Department of Foreign Affairs sitting as members."313 The terms shall be
negotiated by both the Philippines and the U.S., or through their Designated
Authorities. This provision, seen as a whole, contradicts petitioners'
interpretation of the return as a "badge of exclusivity." In fact, it shows the
cooperation and partnership aspect of EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a contextual
perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have
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"unimpeded access to Agreed Locations for all matters relating to the


prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal of
such equipment, supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the
authority to bring in these equipment, supplies, and materiel through the MDB
and SEB security mechanism. These items are owned by the U.S.,314 are
exclusively for the use of the U.S.315 and, after going through the joint consent
mechanisms of the MDB and the SEB, are within the control of the U.S.316 More
importantly, before these items are considered prepositioned, they must have
gone through the process of prior authorization by the MDB and the SEB and
given proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary
adjunct to the ownership, use, and control of the U.S. over its own equipment,
supplies, and materiel and must have first been allowed by the joint mechanisms
in play between the two states since the time of the MDT and the VFA. It is not
the use of the Agreed Locations that is exclusive per se; it is mere access to
items in order to exercise the rights of ownership granted by virtue of the
Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to
operate their own telecommunications system, it will be met and answered in
part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of and in fact
bears a one-to-one correspondence with the provisions of the 1947 MBA. They
assert that both agreements (a) allow similar activities within the area; (b)
provide for the same "species of ownership" over facilities; and (c) grant
operational control over the entire area. Finally, they argue320 that EDCA is in
fact an implementation of the new defense policy of the U.S. According to them,
this policy was not what was originally intended either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners321 simply show that under the MBA,
the U.S. had the right to construct, operate, maintain, utilize, occupy, garrison,
and control the bases. The so-called parallel provisions of EDCA allow only
operational control over the Agreed Locations specifically for construction
activities. They do not allow the overarching power to operate, maintain, utilize,
occupy, garrison, and control a base with full discretion. EDCA in fact limits the
rights of the U.S. in respect of every activity, including construction, by giving
the MDB and the SEB the power to determine the details of all activities such as,
but not limited to, operation, maintenance, utility, occupancy, garrisoning, and
control.322
The "species of ownership" on the other hand, is distinguished by the nature of
the property. For immovable property constructed or developed by the U.S.,
EDCA expresses that ownership will automatically be vested to the
Philippines.323 On the other hand, for movable properties brought into the
Philippines by the U.S., EDCA provides that ownership is retained by the latter. In
contrast, the MBA dictates that the U.S. retains ownership over immovable and
movable properties.
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To our mind, both EDCA and the MBA simply incorporate what is already the law
of the land in the Philippines. The Civil Code's provisions on ownership, as
applied, grant the owner of a movable property full rights over that property,
even if located in another person's property.324
The parallelism, however, ends when the situation involves facilities that can be
considered immovable. Under the MBA, the U.S. retains ownership if it paid for
the facility.325 Under EDCA, an immovable is owned by the Philippines, even if
built completely on the back of U.S. funding.326 This is consistent with the
constitutional prohibition on foreign land ownership.327
Despite the apparent similarity, the ownership of property is but a part of a
larger whole that must be considered before the constitutional restriction is
violated. Thus, petitioners' points on operational control will be given more
attention in the discussion below. The arguments on policy are, however, outside
the scope of judicial review and will not be discussed
Moreover, a direct comparison of the MBA and EDCA will result in several
important distinctions that would allay suspicion that EDCA is but a disguised
version of the MBA.
b. There are substantial matters that the US. cannot do under EDCA, but which it
was authorized to do under the 1947 MBA
The Philippine experience with U.S. military bases under the 1947 MBA is simply
not possible under EDCA for a number of important reasons.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
Philippine territory occupied by American bases. In contrast, the U.S. under EDCA
does not enjoy any such right over any part of the Philippines in which its forces
or equipment may be found. Below is a comparative table between the old treaty
and EDCA:
1947 MBA/ 1946 Treaty of General Relations EDCA
1947 MBA, Art. I(1):
The Government of the Republic of the Philippines (hereinafter referred to as the
Philippines) grants to the Government of the United States of America
(hereinafter referred to as the United States) the right to retain the use of the
bases in the Philippines listed in Annex A attached hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which are erected by the United States in the bases
shall be the property of the United States and may be removed by it before the
expiration of this Agreement or the earlier relinquishment of the base on which
the structures are situated. There shall be no obligation on the part of the
Philippines or of the United States to rebuild or repair any destruction or damage
inflicted from any cause whatsoever on any of the said buildings or structures
owned or used by the United States in the bases. x x x x.
1946 Treaty of Gen. Relations, Art. I:
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The United States of America agrees to withdraw and surrender, and does hereby
withdraw and surrender, all rights of possession, supervision, jurisdiction, control
or sovereignty existing and exercised by the United States of America in and
over the territory and the people of the Philippine Islands, except the use of such
bases, necessary appurtenances to such bases, and the rights incident thereto,
as the United States of America, by agreement with the Republic of the
Philippines may deem necessary to retain for the mutual protection of the
Republic of the Philippines and of the United States of America. x x x.
EDCA, preamble:
Affirming that the Parties share an understanding for the United States not to
establish a permanent military presence or base in the territory of the
Philippines;
xxxx
Recognizing that all United States access to and use of facilities and areas will be
at the invitation of the Philippines and with full respect for the Philippine
Constitution and Philippine laws;
xxxx
EDCA, Art. II(4):
"Agreed Locations" means facilities and areas that are provided by the
Government of the Philippines through the AFP and that United States forces,
United States contractors, and others as mutually agreed, shall have the right to
access and use pursuant to this Agreement. Such Agreed Locations may be listed
in an annex to be appended to this Agreement, and may be further described in
implementing arrangements.
EDCA, Art. V:
1. The Philippines shall retain ownership of and title to Agreed Locations.
xxxx
4. All buildings, non-relocatable structures, and assemblies affixed to the land in
the Agreed Locations, including ones altered or improved by United States
forces, remain the property of the Philippines. Permanent buildings constructed
by United States forces become the property of the Philippines, once
constructed, but shall be used by United States forces until no longer required by
United States forces.

Second, in the bases agreement, the U.S. and the Philippines were visibly not on
equal footing when it came to deciding whether to expand or to increase the
number of bases, as the Philippines may be compelled to negotiate with the U.S.
the moment the latter requested an expansion of the existing bases or to acquire
additional bases. In EDCA, U.S. access is purely at the invitation of the
Philippines.
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1947 MBA/ 1946 Treaty of General Relations EDCA


1947 MBA, Art.I(3):
The Philippines agree to enter into negotiations with the United States at the
latter's request, to permit the United States to expand such bases, to exchange
such bases for other bases, to acquire additional bases, or relinquish rights to
bases, as any of such exigencies may be required by military necessity.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to withdraw and surrender, and does hereby
withdraw and surrender, all rights of possession, supervision, jurisdiction, control
or sovereignty existing and exercised by the United States of America in and
over the territory and the people of the Philippine Islands, except the use of such
bases, necessary appurtenances to such bases, and the rights incident thereto,
as the United States of America, by agreement with the Republic of the
Philippines may deem necessary to retain for the mutual protection of the
Republic of the Philippines and of the United States of America. x x x.
EDCA, preamble:
Recognizing that all United States access to and use of facilities and areas will be
at the invitation of the Philippines and with full respect for the Philippine
Constitution and Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities and areas that are provided by the
Government of the Philippines through the AFP and that United States forces,
United States contractors, and others as mutually agreed, shall have the right to
access and use pursuant to this Agreement. Such Agreed Locations may be listed
in an annex to be appended to this Agreement, and may be further described in
implementing arrangements.
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the
Agreed Locations. On the other hand, given that the U.S. had complete control
over its military bases under the 1947 MBA, the treaty did not provide for any
express recognition of the right of access of Philippine authorities. Without that
provision and in light of the retention of U.S. sovereignty over the old military
bases, the U.S. could effectively prevent Philippine authorities from entering
those bases.
1947 MBA EDCA
No equivalent provision.
EDCA, Art. III(5):
The Philippine Designated Authority and its authorized representative shall have
access to the entire area of the Agreed Locations. Such access shall be provided
promptly consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties.
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Fourth, in the bases agreement, the U.S. retained the right, power, and authority
over the establishment, use, operation, defense, and control of military bases,
including the limits of territorial waters and air space adjacent to or in the vicinity
of those bases. The only standard used in determining the extent of its control
was military necessity. On the other hand, there is no such grant of power or
authority under EDCA. It merely allows the U.S. to exercise operational control
over the construction of Philippine-owned structures and facilities:
1947 MBA EDCA
1947 MBA, Art.I(2):
The Philippines agrees to permit the United States, upon notice to the
Philippines, to use such of those bases listed in Annex B as the United States
determines to be required by military necessity.
1947 MBA, Art. III(1):
It is mutually agreed that the United States shall have the rights, power and
authority within the bases which are necessary for the establishment, use,
operation and defense thereof or appropriate for the control thereof and all the
rights, power and authority within the limits of territorial waters and air space
adjacent to, or in the vicinity of, the bases which are necessary to provide access
to them, or appropriate for their control.
EDCA, Art. III(4):
The Philippines hereby grants to the United States, through bilateral security
mechanisms, such as the MDB and SEB, operational control of Agreed Locations
for construction activities and authority to undertake such activities on, and
make alterations and improvements to, Agreed Locations. United States forces
shall consult on issues regarding such construction, alterations, and
improvements based on the Parties' shared intent that the technical
requirements and construction standards of any such projects undertaken by or
on behalf of United States forces should be consistent with the requirements and
standards of both Parties.
Fifth, the U.S. under the bases agreement was given the authority to use
Philippine territory for additional staging areas, bombing and gunnery ranges. No
such right is given under EDCA, as seen below:
1947 MBA EDCA
1947 MBA, Art. VI:
The United States shall, subject to previous agreement with the Philippines, have
the right to use land and coastal sea areas of appropriate size and location for
periodic maneuvers, for additional staging areas, bombing and gunnery ranges,
and for such intermediate airfields as may be required for safe and efficient air
operations. Operations in such areas shall be carried on with due regard and
safeguards for the public safety.
1947 MBA, Art.I(2):

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The Philippines agrees to permit the United States, upon notice to the
Philippines, to use such of those bases listed in Annex B as the United States
determines to be required by military necessity.
EDCA, Art. III(1):
With consideration of the views of the Parties, the Philippines hereby authorizes
and agrees that United States forces, United States contractors, and vehicles,
vessels, and aircraft operated by or for United States forces may conduct the
following activities with respect to Agreed Locations: training; transit; support
and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel;
deploying forces and materiel; and such other activities as the Parties may
agree.
Sixth, under the MBA, the U.S. was given the right, power, and authority to
control and prohibit the movement and operation of all types of vehicles within
the vicinity of the bases. The U.S. does not have any right, power, or authority to
do so under EDCA.
1947 MBA EDCA
1947 MBA, Art. 111(2)(c)
Such rights, power and authority shall include, inter alia, the right, power and
authority: x x x x to control (including the right to prohibit) in so far as may be
required for the efficient operation and safety of the bases, and within the limits
of military necessity, anchorages, moorings, landings, takeoffs, movements and
operation of ships and water-borne craft, aircraft and other vehicles on water, in
the air or on land comprising
No equivalent provision.
Seventh, under EDCA, the U.S. is merely given temporary access to land and
facilities (including roads, ports, and airfields). On the other hand, the old treaty
gave the U.S. the right to improve and deepen the harbors, channels, entrances,
and anchorages; and to construct or maintain necessary roads and bridges that
would afford it access to its military bases.
1947 MBA EDCA
1947 MBA, Art. III(2)(b):
Such rights, power and authority shall include, inter alia, the right, power and
authority: x x x x to improve and deepen the harbors, channels, entrances and
anchorages, and to construct or maintain necessary roads and bridges affording
access to the bases.
EDCA, Art. III(2):
When requested, the Designated Authority of the Philippines shall assist in
facilitating transit or temporary access by United States forces to public land and
facilities (including roads, ports, and airfields), including those owned or
controlled by local governments, and to other land and facilities (including roads,
ports, and airfields).
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Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and
all public utilities, services and facilities, airfields, ports, harbors, roads,
highways, railroads, bridges, viaducts, canals, lakes, rivers, and streams in the
Philippines in the same manner that Philippine military forces enjoyed that right.
No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces
temporary access to public land and facilities when requested:
1947 MBA EDCA
1947 MBA, Art. VII:
It is mutually agreed that the United States may employ and use for United
States military forces any and all public utilities, other services and facilities,
airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals,
lakes, rivers and streams in the Philippines under conditions no less favorable
than those that may be applicable from time to time to the military forces of the
Philippines.
EDCA, Art. III(2):
When requested, the Designated Authority of the Philippines shall assist in
facilitating transit or temporary access by United States forces to public land and
facilities (including roads, ports, and airfields), including those owned or
controlled by local governments, and to other land and facilities (including roads,
ports, and airfields).
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to
construct, install, maintain, and employ any type of facility, weapon, substance,
device, vessel or vehicle, or system unlike in the old treaty. EDCA merely grants
the U.S., through bilateral security mechanisms, the authority to undertake
construction, alteration, or improvements on the Philippine-owned Agreed
Locations.
1947 MBA EDCA
1947 MBA, Art. III(2)(e):
Such rights, power and authority shall include, inter alia, the right, power and
authority: x x x x to construct, install, maintain, and employ on any base any
type of facilities, weapons, substance, device, vessel or vehicle on or under the
ground, in the air or on or under the water that may be requisite or appropriate,
including meteorological systems, aerial and water navigation lights, radio and
radar apparatus and electronic devices, of any desired power, type of emission
and frequency.
EDCA, Art. III(4):
The Philippines hereby grants to the United States, through bilateral security
mechanisms, such as the MDB and SEB, operational control of Agreed Locations
for construction activities and authority to undertake such activities on, and
make alterations and improvements to, Agreed Locations. United States forces
shall consult on issues regarding such construction, alterations, and
improvements based on the Parties' shared intent that the technical
requirements and construction standards of any such projects undertaken by or
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on behalf of United States forces should be consistent with the requirements and
standards of both Parties.
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or
expropriation proceedings, real property belonging to any private person. The old
military bases agreement gave this right to the U.S. as seen below:
1947 MBA EDCA
1947 MBA, Art. XXII(l):
Whenever it is necessary to acquire by
condemnation or expropriation proceedings real property belonging to any
private persons, associations or corporations located in bases named in Annex A
and Annex B in order to carry out the purposes of this Agreement, the Philippines
will institute and prosecute such condemnation or expropriation proceedings in
accordance with the laws of the Philippines. The United States agrees to
reimburse the Philippines for all the reasonable expenses, damages and costs
therebv incurred, including the value of the property as determined by the Court.
In addition, subject to the mutual agreement of the two Governments, the United
States will reimburse the Philippines for the reasonable costs of transportation
and removal of any occupants displaced or ejected by reason of the
condemnation or expropriation.
No equivalent provision.
Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country nonPhilippine nationals who are under its employ, together with their families, in
connection with the construction, maintenance, or operation of the bases. EDCA
strictly adheres to the limits under the VFA.
1947 MBA EDCA
1947 MBA, Art. XI(l):
It is mutually agreed that the United States shall have the right to bring into the
Philippines members of the United States military forces and the United States
nationals employed by or under a contract with the United States together with
their families, and technical personnel of other nationalities (not being persons
excluded by the laws of the Philippines) in connection with the construction,
maintenance, or operation of the bases. The United States shall make suitable
arrangements so that such persons may be readily identified and their status
established when necessary by the Philippine authorities. Such persons, other
than members of the United States armed forces in uniform, shall present their
travel documents to the appropriate Philippine authorities for visas, it being
understood that no objection will be made to their travel to the Philippines as
non-immigrants.
EDCA, Art. II:
1. "United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities
approved by the Philippines, as those terms are defined in the VFA.
x xx x
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3. "United States contractors" means companies and firms, and their employees,
under contract or subcontract to or on behalf of the United States Department of
Defense. United States contractors are not included as part of the definition of
United States personnel in this Agreement, including within the context of the
VFA.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense
committed by any person within the Agreed Locations, unlike in the former
military bases:
1947 MBA EDCA
1947 MBA, Art. XIII(l)(a):
The Philippines consents that the United
States shall have the right to exercise jurisdiction over the following offenses: (a)
Any offense committed by any person within any base except where the offender
and offended parties are both Philippine citizens (not members of the armed
forces of the United States on active duty) or the offense is against the security
of the Philippines.
No equivalent provision.
Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX)
facilities, which is free of customs duties and taxes, unlike what the expired MBA
expressly allowed. Parenthetically, the PX store has become the cultural icon of
U.S. military presence in the country.
1947 MBA EDCA
1947 MBA, Art. XVIII(l):
It is mutually agreed that the United States
shall have the right to establish on bases, free of all licenses; fees; sales, excise
or other taxes, or imposts; Government agencies, including concessions, such as
sales commissaries and post exchanges; messes and social clubs, for the
exclusive use of the United States military forces and authorized civilian
personnel and their families. The merchandise or services sold or dispensed by
such agencies shall be free of all taxes, duties and inspection by the Philippine
authorities. Administrative measures shall be taken by the appropriate
authorities of the United States to prevent the resale of goods which are sold
under the provisions of this Article to persons not entitled to buy goods at such
agencies and, generally, to prevent abuse of the privileges granted under this
Article. There shall be cooperation between such authorities and the Philippines
to this end.
No equivalent provision.
In sum, EDCA is a far cry from a basing agreement as was understood by the
people at the time that the 1987 Constitution was adopted.
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Nevertheless, a comprehensive review of what the Constitution means by


"foreign military bases" and "facilities" is required before EDCA can be deemed
to have passed judicial scrutiny.
c. The meaning of military facilities and bases
An appreciation of what a military base is, as understood by the Filipino people in
1987, would be vital in determining whether EDCA breached the constitutional
restriction.
Prior to the drafting of the 1987 Constitution, the last definition of "military base"
was provided under Presidential Decree No. (PD) 1227.328 Unlawful entry into a
military base is punishable under the decree as supported by Article 281 of the
Revised Penal Code, which itself prohibits the act of trespass.
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in
this decree means any military, air, naval, or coast guard reservation, base, fort,
camp, arsenal, yard, station, or installation in the Philippines."
Commissioner Tadeo, in presenting his objections to U.S. presence in the
Philippines before the 1986 Constitutional Commission, listed the areas that he
considered as military bases:
1,000 hectares Camp O'Donnel
20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described its coverage in its
Declaration of Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the
Government to accelerate the sound and balanced conversion into alternative
productive uses of the Clark and Subic military reservations and their extensions
(John Hay Station, Wallace Air Station, O'Donnell Transmitter Station, San Miguel
Naval Communications Station and Capas Relay Station), to raise funds by the
sale of portions of Metro Manila military camps, and to apply said funds as
provided herein for the development and conversion to productive civilian use of
the lands covered under the 194 7 Military Bases Agreement between the
Philippines and the United States of America, as amended.330
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The result of the debates and subsequent voting is Section 25, Article XVIII of the
Constitution, which specifically restricts, among others, foreign military facilities
or bases. At the time of its crafting of the Constitution, the 1986 Constitutional
Commission had a clear idea of what exactly it was restricting. While the term
"facilities and bases" was left undefined, its point of reference was clearly those
areas covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world of
military technology and geopolitics has surpassed the understanding of the
Philippine people in 1986. The last direct military action of the U.S. in the region
was the use of Subic base as the staging ground for Desert Shield and Desert
Storm during the Gulf War.331 In 1991, the Philippine Senate rejected the
successor treaty of the 1947 MBA that would have allowed the continuation of
U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve
likewise, taking into consideration the subsisting agreements between both
parties, the rejection of the 1991 proposal, and a concrete understanding of what
was constitutionally restricted. This trend birthed the VFA which, as discussed,
has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed "Agreed
Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines
through the AFP and that United States forces, United States contractors, and
others as mutually agreed, shall have the right to access and use pursuant to
this Agreement. Such Agreed Locations may be listed in an annex to be
appended to this Agreement, and may be further described in implementing
arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines
shall retain ownership of and title to the Agreed Locations means that EDCA is
"consistent with Article II of the VFA which recognizes Philippine sovereignty and
jurisdiction over locations within Philippine territory.333
By this interpretation, respondent acknowledges that the contention of
petitioners springs from an understanding that the Agreed Locations merely
circumvent the constitutional restrictions. Framed differently, the bone of
contention is whether the Agreed Locations are, from a legal perspective, foreign
military facilities or bases. This legal framework triggers Section 25, Article XVIII,
and makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized
by the Philippines to "conduct the following activities: "training; transit; support
and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may
agree."

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This creation of EDCA must then be tested against a proper interpretation of the
Section 25 restriction.
d. Reasons for the constitutional requirements and legal standards for
constitutionally compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or base."
While it specifically alludes to U.S. military facilities and bases that existed
during the framing of the Constitution, the provision was clearly meant to apply
to those bases existing at the time and to any future facility or base. The basis
for the restriction must first be deduced from the spirit of the law, in order to set
a standard for the application of its text, given the particular historical events
preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean,
from their collective wisdom, the intent of Section 25. Their speeches are rich
with history and wisdom and present a clear picture of what they considered in
the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases
provisions with what purports to be an objective presentation of the historical
background of the military bases in the Philippines. Care appears, however, to
have been taken to underscore the inequity in their inception as well as their
implementation, as to seriously reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after World War II are
quoted in support of the proposition on neutrality; regrettably, the implication is
that the same remains valid today, as if the world and international activity stood
still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the
military bases on our sovereignty - whether in its legal or political sense is not
clear - and the theory that any country with foreign bases in its territory cannot
claim to be fully sovereign or completely independent. I was not aware that the
concepts of sovereignty and independence have now assumed the totality
principle, such that a willing assumption of some delimitations in the exercise of
some aspects thereof would put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on
the advisability of having military bases within our shores. Most of us who, only
about three months ago, were just mulling the prospects of these varying
contentions are now expected, like armchair generals, to decide not only on the
geopolitical aspects and contingent implications of the military bases but also on
their political, social, economic and cultural impact on our national life. We are
asked to answer a plethora of questions, such as: 1) whether the bases are
magnets of nuclear attack or are deterrents to such attack; 2) whether an
alliance or mutual defense treaty is a derogation of our national sovereignty; 3)
whether criticism of us by Russia, Vietnam and North Korea is outweighed by the
support for us of the ASEAN countries, the United States, South Korea, Taiwan,
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Australia and New Zealand; and 4) whether the social, moral and legal problems
spawned by the military bases and their operations can be compensated by the
economic benefits outlined in papers which have been furnished recently to all of
us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and
forceful assertions of their positions. They are entitled to the luxury of the
absolutes. We are urged now to adopt the proposed declaration as a "golden,"
"unique" and "last" opportunity for Filipinos to assert their sovereign rights.
Unfortunately, I have never been enchanted by superlatives, much less for the
applause of the moment or the ovation of the hour. Nor do I look forward to any
glorious summer after a winter of political discontent. Hence, if I may join
Commissioner Laurel, I also invoke a caveat not only against the tyranny of
labels but also the tyranny of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the
problem of the removal of foreign bases from the Philippines have been
adequately treated by previous speakers. Let me, therefore, just recapitulate the
arguments adduced in favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own destiny without outside
interference;
2. That no lasting peace and no true sovereignty would ever be achieved so long
as there are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very substance
of national sovereignty and this is a constant source of national embarrassment
and an insult to our national dignity and selfrespect as a nation;
4. That these foreign military bases unnecessarily expose our country to
devastating nuclear attacks;
5. That these foreign military bases create social problems and are designed to
perpetuate the strangle-hold of United States interests in our national economy
and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate to
deprive our country of jurisdiction over civil and criminal offenses committed
within our own national territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon our
helpless country; and

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8. That on the legal viewpoint and in the ultimate analysis, all the bases
agreements are null and void ab initio, especially because they did not count the
sovereign consent and will of the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could accommodate
the provisions I have cited, what is our objection to include in our Constitution a
matter as priceless as the nationalist values we cherish? A matter of the gravest
concern for the safety and survival of this nation indeed deserves a place in our
Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as a nation
and the future of generations to come with thirty pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons wherever they
are found and whoever owns them is that those are for killing people or for
terrorizing humanity. This objective by itself at any point in history is morally
repugnant. This alone is reason enough for us to constitutionalize the ban on
foreign military bases and on nuclear weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to remove
the bases because even if the bases are removed, the girls mired in poverty will
look for their clientele elsewhere. The remedy to the problem of prostitution lies
primarily elsewhere - in an alert and concerned citizenry, a healthy economy and
a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign military bases
here is that they impair portions of our sovereignty. While I agree that our
country's sovereignty should not be impaired, I also hold the view that there are
times when it is necessary to do so according to the imperatives of national
interest. There are precedents to this effect. Thus, during World War II, England
leased its bases in the West Indies and in Bermuda for 99 years to the United
States for its use as naval and air bases. It was done in consideration of 50
overaged destroyers which the United States gave to England for its use in the
Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for
the latter's use as a naval base in the Indian Ocean. About the same time, the
United States obtained bases in Spain, Egypt and Israel. In doing so, these
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countries, in effect, contributed to the launching of a preventive defense posture


against possible trouble in the Middle East and in the Indian Ocean for their own
protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the
presence of American troops in the country is a projection of America's security
interest. Enrile said that nonetheless, they also serve, although in an incidental
and secondary way, the security interest of the Republic of the Philippines and
the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in
this Commission, namely: It is ideal for us as an independent and sovereign
nation to ultimately abrogate the RP-US military treaty and, at the right time,
build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military
bases in the Philippines provided that such an extension from one period to
another shall be concluded upon concurrence of the parties, and such extension
shall be based on justice, the historical amity of the people of the Philippines and
the United States and their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of
framing a constitution, I read a statement of President Aquino to the effect that
she is for the removal of the U.S. military bases in this country but that the
removal of the U.S. military bases should not be done just to give way to other
foreign bases. Today, there are two world superpowers, both vying to control any
and all countries which have importance to their strategy for world domination.
The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely remove
any vestiges of the days of enslavement, but not prepared to erase them if to do
so would merely leave a vacuum to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our brethren in
the Middle East, in Indo-China, Central America, in South Africa - there has been
escalation of war in some of these areas because of foreign intervention which
views these conflicts through the narrow prism of the East-West conflict. The
United States bases have been used as springboards for intervention in some of
these conflicts. We should not allow ourselves to be party to the warlike
mentality of these foreign interventionists. We must always be on the side of
peace this means that we should not always rely on military solution.352
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xxxx
x x x The United States bases, therefore, are springboards for intervention in our
own internal affairs and in the affairs of other nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its
fundamental freedoms which should logically be declared in black and white in
our fundamental law of the land - the Constitution. Let us express our desire for
national sovereignty so we may be able to achieve national self-determination.
Let us express our desire for neutrality so that we may be able to follow active
nonaligned independent foreign policies. Let us express our desire for peace and
a nuclear-free zone so we may be able to pursue a healthy and tranquil
existence, to have peace that is autonomous and not imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa
magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang
pananatili ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong
patuloy na nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng
U.S. military bases ay batong pabigat na patuloy na pinapasan ng sambayanang
Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. military bases
ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng
imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically
and culturally. Para sa sambayanang magbubukid ang U.S. military bases ay
kasingkahulugan ng nuclear weapon - ang kahulugan ay magneto ng isang
nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S. military
bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the instruments
of domination and subservience has clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support for the
committee's position to enshrine in the Constitution a fundamental principle
forbidding foreign military bases, troops or facilities in any part of the Philippine
territory as a clear and concrete manifestation of our inherent right to national
self-determination, independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of genuine
nationhood to the social cost of allowing foreign countries to maintain military
bases in our country. Previous speakers have dwelt on this subject, either to
highlight its importance in relation to the other issues or to gloss over its
significance and !llake this a part of future negotiations.357
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xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of the
solutions and is the response of the Filipino people against this condition and
other conditions that have already been clearly and emphatically discussed in
past deliberations. The deletion, therefore, of Section 3 in the Constitution we are
drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively respond to the
continuing violation of our territorial integrity via the military bases agreement
which permits the retention of U.S. facilities within the Philippine soil over which
our authorities have no exclusive jurisdiction contrary to the accepted definition
of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to an exception
in the application of a provision in the Bill of Rights that we have just drafted
regarding equal application of the laws of the land to all inhabitants, permanent
or otherwise, within its territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite
the condemnations of such practice by the world community of nations in the
light of overwhelming international approval of eradicating all vestiges of
colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in the hope
that such can be wielded to force the United States government to concede to
better terms and conditions concerning the military bases agreement, including
the transfer of complete control to the Philippine government of the U.S.
facilities, while in the meantime we have to suffer all existing indignities and
disrespect towards our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign military bases
as essentially a question of sovereignty which does not require in-depth studies
or analyses and which this forum has, as a constituent assembly drafting a
constitution, the expertise and capacity to decide on except that it lacks the
political will that brought it to existence and now engages in an elaborate
scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if we
reclaim, restore, uphold and defend our national sovereignty. National
sovereignty is what the military bases issue is all about. It is only the sovereign
people exercising their national sovereignty who can design an independent
course and take full control of their national destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
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Mr. Presiding Officer, in advocating the majority committee report, specifically


Sections 3 and 4 on neutrality, nuclear and bases-free country, some views
stress sovereignty of the Republic and even invoke survival of the Filipino nation
and people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the
committee report to dismantle the American bases after 1991 only show the
urgent need to free our country from the entangling alliance with any power
bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know
that the so-called RP-US Bases Agreement will expire in 1991, that it infringes on
our sovereignty and jurisdiction as well as national dignity and honor, that it goes
against the UN policy of disarmament and that it constitutes unjust intervention
in our internal affairs.364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign military bases,
troops, or facilities, subject to the provisions of Section 25. It is thus important to
read its discussions carefully. From these discussions, we can deduce three legal
standards that were articulated by the Constitutional Commission Members.
These are characteristics of any agreement that the country, and by extension
this Court, must ensure are observed. We can thereby determine whether a
military base or facility in the Philippines, which houses or is accessed by foreign
military troops, is foreign or remains a Philippine military base or facility. The
legal standards we find applicable are: independence from foreign control,
sovereignty and applicable law, and national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the
Constitution's drafting was aimed at asserting Philippine independence from the
U.S., as well as control over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over
property.
Property is classified as private or public.365 It is public if "intended for public
use, such as roads, canals, rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar character[,]" or "[t]hose
which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. "366
Quite clearly, the Agreed Locations are contained within a property for public
use, be it within a government military camp or property that belongs to the
Philippines.1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article
428 of the Civil Code provides that "[t]he owner has the right to enjoy and
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dispose of a thing, without other limitations than those established by law."


Moreover, the owner "has also a right of action against the holder and possessor
of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property,
even against those who hold the property. Possession, after all, merely raises a
disputable presumption of ownership, which can be contested through normal
judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed Locations
remains with the Philippine govemment.368 What U.S. personnel have a right to,
pending mutual agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with
the Civil Code, since the owner may dispose of the property in whatever way
deemed fit, subject to the limits of the law. So long as the right of ownership
itself is not transferred, then whatever rights are transmitted by agreement does
not completely divest the owner of the rights over the property, but may only
limit them in accordance with law.
Hence, even control over the property is something that an owner may transmit
freely. This act does not translate into the full transfer of ownership, but only of
certain rights. In Roman Catholic Apostolic Administrator of Davao, Inc. v. Land
Registration Commission, we stated that the constitutional proscription on
property ownership is not violated despite the foreign national's control over the
property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of
use and access. Under its pertinent provisions, it is the Designated Authority of
the Philippines that shall, when requested, assist in facilitating transit or access
to public land and facilities.371 The activities carried out within these locations
are subject to agreement as authorized by the Philippine govemment.372
Granting the U.S. operational control over these locations is likewise subject to
EDCA' s security mechanisms, which are bilateral procedures involving Philippine
consent and cooperation.373 Finally, the Philippine Designated Authority or a
duly designated representative is given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control, which was
so feared by the Constitutional Commission. In fact, they seem to have been the
product of deliberate negotiation from the point of view of the Philippine
government, which balanced constitutional restrictions on foreign military bases
and facilities against the security needs of the country. In the 1947 MBA, the U.S.
forces had "the right, power and authority x x x to construct (including dredging
and filling), operate, maintain, utilize, occupy, garrison and control the
bases."375 No similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military facilities
and bases has been raised by the present Constitution. Section 25 is explicit that
foreign military bases, troops, or facilities shall not be allowed in the Philippines,
except under a treaty duly concurred in by the Senate. Merely stating that the
Philippines would retain ownership would do violence to the constitutional
requirement if the Agreed Locations were simply to become a less obvious
manifestation of the U.S. bases that were rejected in 1991.
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When debates took place over the military provisions of the Constitution, the
committee rejected a specific provision proposed by Commissioner Sarmiento.
The discussion illuminates and provides context to the 1986 Constitutional
Commission's vision of control and independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as follows:
"THE STATE SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELFRELIANT ARMED FORCES OF THE PHILIPPINES." Allow me to briefly explain,
Madam President. The Armed Forces of the Philippines is a vital component of
Philippine society depending upon its training, orientation and support. It will
either be the people's protector or a staunch supporter of a usurper or tyrant,
local and foreign interest. The Armed Forces of the Philippines' past and recent
experience shows it has never been independent and self-reliant. Facts, data and
statistics will show that it has been substantially dependent upon a foreign
power. In March 1968, Congressman Barbero, himself a member of the Armed
Forces of the Philippines, revealed top secret documents showing what he
described as U.S. dictation over the affairs of the Armed Forces of the Philippines.
He showed that under existing arrangements, the United States unilaterally
determines not only the types and quantity of arms and equipments that our
armed forces would have, but also the time when these items are to be made
available to us. It is clear, as he pointed out, that the composition, capability and
schedule of development of the Armed Forces of the Philippines is under the
effective control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987
Constitution that would assert "independent" and "self-reliant" armed forces. This
proposal was rejected by the committee, however. As Commissioner De Castro
asserted, the involvement of the Philippine military with the U.S. did not, by
itself, rob the Philippines of its real independence. He made reference to the
context of the times: that the limited resources of the Philippines and the current
insurgency at that time necessitated a strong military relationship with the U.S.
He said that the U.S. would not in any way control the Philippine military despite
this relationship and the fact that the former would furnish military hardware or
extend military assistance and training to our military. Rather, he claimed that
the proposal was in compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military
bases on 12 September 1986, I spoke on the selfreliance policy of the armed
forces. However, due to very limited resources, the only thing we could do is
manufacture small arms ammunition. We cannot blame the armed forces. We
have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a
beautiful dream. And I would like it that way. But as of this time, fighting an
insurgency case, a rebellion in our country - insurgency - and with very limited
funds and very limited number of men, it will be quite impossible for the
Philippines to appropriate the necessary funds therefor. However, if we say that
the U.S. government is furnishing us the military hardware, it is not control of our
armed forces or of our government. It is in compliance with the Mutual Defense
Treaty. It is under the military assistance program that it becomes the
responsibility of the United States to furnish us the necessary hardware in
connection with the military bases agreement. Please be informed that there are
three (3) treaties connected with the military bases agreement; namely: the RPUS Military Bases Agreement, the Mutual Defense Treaty and the Military
Assistance Program.
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My dear Commissioner, when we enter into a treaty and we are furnished the
military hardware pursuant to that treaty, it is not in control of our armed forces
nor control of our government. True indeed, we have military officers trained in
the U.S. armed forces school. This is part of our Military Assistance Program, but
it does not mean that the minds of our military officers are for the U.S.
government, no. I am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people. Also, while we are
sending military officers to train or to study in U.S. military schools, we are also
sending our officers to study in other military schools such as in Australia,
England and in Paris. So, it does not mean that when we send military officers to
United States schools or to other military schools, we will be under the control of
that country. We also have foreign officers in our schools, we in the Command
and General Staff College in Fort Bonifacio and in our National Defense College,
also in Fort Bonifacio.377 (Emphases supplied)
This logic was accepted in Taada v. Angara, in which the Court ruled that
independence does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" does not necessarily rule out the entry of foreign investments, goods
and services. It contemplates neither "economic seclusion" nor "mendicancy in
the international community." As explained by Constitutional Commissioner
Bernardo Villegas, sponsor of this constitutional policy:
Economic self reliance is a primary objective of a developing country that is
keenly aware of overdependence on external assistance for even its most basic
needs. It does not mean autarky or economic seclusion; rather, it means
avoiding mendicancy in the international community. Independence refers to the
freedom from undue foreign control of the national economy, especially in such
strategic industries as in the development of natural resources and public
utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases
is therefore the assertion of independence from the U.S. and other foreign
powers, as independence is exhibited by the degree of foreign control exerted
over these areas.1wphi1 The essence of that independence is self-governance
and self-control.379 Independence itself is "[t]he state or condition of being free
from dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and authority
over Philippine facilities and locations, such that the agreement effectively
violates Section 25 of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for
"operational control and defense." The term "operational control" has led
petitioners to regard U.S. control over the Agreed Locations as unqualified and,
therefore, total.382 Petitioners contend that the word "their" refers to the subject
"Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within
Agreed Locations that are necessary for their operational control or defense,
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including taking appropriate measure to protect United States forces and United
States contractors. The United States should coordinate such measures with
appropriate authorities of the Philippines.
A basic textual construction would show that the word "their," as understood
above, is a possessive pronoun for the subject "they," a third-person personal
pronoun in plural form. Thus, "their" cannot be used for a non-personal subject
such as "Agreed Locations." The simple grammatical conclusion is that "their"
refers to the previous third-person plural noun, which is "United States forces."
This conclusion is in line with the definition of operational control.
a. U.S. operational control as the exercise of authority over U.S. personnel, and
not over the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a military
term referring to
[t]he authority to perform those functions of command over subordinate forces
involving organizing and employing commands and forces, assigning tasks,
designating objective, and giving authoritative direction necessary to accomplish
the mission.383
At times, though, operational control can mean something slightly different. In
JUSMAG Philippines v. National Labor Relations Commission, the Memorandum of
Agreement between the AFP and JUSMAG Philippines defined the term as
follows:384
The term "Operational Control" includes, but is not limited to, all personnel
administrative
actions,
such
as:
hiring
recommendations;
firing
recommendations; position classification; discipline; nomination and approval of
incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel control.
Philippine law, for instance, deems operational control as one exercised by police
officers and civilian authorities over their subordinates and is distinct from the
administrative control that they also exercise over police subordinates.385
Similarly, a municipal mayor exercises operational control over the police within
the municipal government,386 just as city mayor possesses the same power
over the police within the city government.387
Thus, the legal concept of operational control involves authority over personnel
in a commander-subordinate relationship and does not include control over the
Agreed Locations in this particular case. Though not necessarily stated in EDCA
provisions, this interpretation is readily implied by the reference to the taking of
"appropriate measures to protect United States forces and United States
contractors."
It is but logical, even necessary, for the U.S. to have operational control over its
own forces, in much the same way that the Philippines exercises operational
control over its own units.
For actual operations, EDCA is clear that any activity must be planned and preapproved by the MDB-SEB.388 This provision evinces the partnership aspect of
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EDCA, such that both stakeholders have a say on how its provisions should be
put into effect.
b. Operational control vis--vis effective command and control
Petitioners assert that beyond the concept of operational control over personnel,
qualifying access to the Agreed Locations by the Philippine Designated Authority
with the phrase "consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties" leads to the
conclusion that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession of and
control over a given area, its representative should not have to be authorized by
a special provision.390
For these reasons, petitioners argue that the "operational control" in EDCA is the
"effective command and control" in the 1947 MBA.391 In their Memorandum,
they distinguish effective command and control from operational control in U.S.
parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint
Publication 1, "command and control (C2)" is defined as "the exercise of
authority and direction by a properly designated commander over assigned and
attached forces in the accomplishment of the mission x x x."393 Operational
control, on the other hand, refers to "[t]hose functions of command over
assigned forces involving the composition of subordinate forces, the assignment
of tasks, the designation of objectives, the overall control of assigned resources,
and the full authoritative direction necessary to accomplish the mission."394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements
in accordance with agreed procedures developed by the Parties" does not add
any qualification beyond that which is already imposed by existing treaties. To
recall, EDCA is based upon prior treaties, namely the VFA and the MDT.395
Treaties are in themselves contracts from which rights and obligations may be
claimed or waived.396 In this particular case, the Philippines has already agreed
to abide by the security mechanisms that have long been in place between the
U.S. and the Philippines based on the implementation of their treaty
relations.397
Secondly, the full document cited by petitioners contradicts the equation of
"operational control" with "effective command and control," since it defines the
terms quite differently, viz:398
Command and control encompasses the exercise of authority, responsibility, and
direction by a commander over assigned and attached forces to accomplish the
mission. Command at all levels is the art of motivating and directing people and
organizations into action to accomplish missions. Control is inherent in
command. To control is to manage and direct forces and functions consistent
with a commander's command authority. Control of forces and functions helps
commanders and staffs compute requirements, allocate means, and integrate
efforts. Mission command is the preferred method of exercising C2. A complete
discussion of tenets, organization, and processes for effective C2 is provided in
Section B, "Command and Control of Joint Forces," of Chapter V "Joint Command
and Control."
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Operational control is defined thus:399


OPCON is able to be delegated from a lesser authority than COCOM. It is the
authority to perform those functions of command over subordinate forces
involving organizing and employing commands and forces, assigning tasks,
designating objectives, and giving authoritative direction over all aspects of
military operations and joint training necessary to accomplish the mission. It
should be delegated to and exercised by the commanders of subordinate
organizations; normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON provides authority to
organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative
direction for logistics or matters of administration, discipline, internal
organization, or unit training. These elements of COCOM must be specifically
delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command,
while command and control is the overall power and responsibility exercised by
the commander with reference to a mission. Operational control is a narrower
power and must be given, while command and control is plenary and vested in a
commander. Operational control does not include the planning, programming,
budgeting, and execution process input; the assignment of subordinate
commanders; the building of relationships with Department of Defense agencies;
or the directive authority for logistics, whereas these factors are included in the
concept of command and control.400
This distinction, found in the same document cited by petitioners, destroys the
very foundation of the arguments they have built: that EDCA is the same as the
MBA.
c. Limited operational control over the Agreed Locations only for construction
activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the
U.S. operational control within the Agreed Locations during construction
activities.401 This exercise of operational control is premised upon the approval
by the MDB and the SEB of the construction activity through consultation and
mutual agreement on the requirements and standards of the construction,
alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be emphasized that
the grant is only for construction activities. The narrow and limited instance
wherein the U.S. is given operational control within an Agreed Location cannot be
equated with foreign military control, which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction activities,
operational control over the Agreed Location is vested in the Philippine
authorities. This meaning is implicit in the specific grant of operational control
only during construction activities. The principle of constitutional construction,
"expressio unius est exclusio alterius," means the failure to mention the thing
becomes the ground for inferring that it was deliberately excluded.403 Following
this construction, since EDCA mentions the existence of U.S. operational control
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over the Agreed Locations for construction activities, then it is quite logical to
conclude that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the commissioners
was total control, to the point that the foreign military forces might dictate the
terms of their acts within the Philippines.404 More important, limited control
does not mean an abdication or derogation of Philippine sovereignty and legal
jurisdiction over the Agreed Locations. It is more akin to the extension of
diplomatic courtesies and rights to diplomatic agents,405 which is a waiver of
control on a limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the
Constitution: that the Philippines must retain sovereignty and jurisdiction over its
territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to
establish a permanent military presence or base in the territory of the
Philippines." Further on, it likewise states the recognition that "all United States
access to and use of facilities and areas will be at the invitation of the Philippines
and with full respect for the Philippine Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in
light of Philippine sovereignty and jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is the
conferment by law of power and authority to apply the law.407 Article I of the
1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions, form part
of the internal waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the Philippines
that the U.S. forces are allowed to access and use.408 By withholding ownership
of these areas and retaining unrestricted access to them, the government
asserts sovereignty over its territory. That sovereignty exists so long as the
Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with
respect to the Agreed Locations.410 Hence, Philippine law remains in force
therein, and it cannot be said that jurisdiction has been transferred to the U.S.
Even the previously discussed necessary measures for operational control and
defense over U.S. forces must be coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the
MBA, Philippine laws continue to be in force within the bases.412 The difference
between then and now is that EDCA retains the primary jurisdiction of the
Philippines over the security of the Agreed Locations, an important provision that
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gives it actual control over those locations. Previously, it was the provost marshal
of the U.S. who kept the peace and enforced Philippine law in the bases. In this
instance, Philippine forces act as peace officers, in stark contrast to the 1947
MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the Agreed
Locations must not impair or threaten the national security and territorial
integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology
has essentially rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well as huge sea vessels
that can stay afloat in the sea even for months and years without returning to
their home country. These military warships are actually used as substitutes for a
land-home base not only of military aircraft but also of military personnel and
facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does
not allow, for instance, the re-establishment of the Subic military base or the
Clark Air Field as U.S. military reservations. In this context, therefore, this Court
has interpreted the restrictions on foreign bases, troops, or facilities as three
independent restrictions. In accord with this interpretation, each restriction must
have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a
military base is.415 While the source is not authoritative, petitioners make the
point that the Agreed Locations, by granting access and use to U.S. forces and
contractors, are U.S. bases under a different name.416 More important, they
claim that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the realm
of law, but of politics and policy. At the very least, we can say that under
international law, EDCA does not provide a legal basis for a justified attack on the
Philippines.
In the first place, international law disallows any attack on the Agreed Locations
simply because of the presence of U.S. personnel. Article 2(4) of the United
Nations Charter states that "All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations."418 Any unlawful attack on the Philippines
breaches the treaty, and triggers Article 51 of the same charter, which
guarantees the inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international
humanitarian law standards prevent participants in an armed conflict from
targeting non-participants. International humanitarian law, which is the branch of
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international law applicable to armed conflict, expressly limits allowable military


conduct exhibited by forces of a participant in an armed conflict.419 Under this
legal regime, participants to an armed conflict are held to specific standards of
conduct that require them to distinguish between combatants and noncombatants,420 as embodied by the Geneva Conventions and their Additional
Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of international law at
the University of Leicester, noted that there is no legal consensus for what
constitutes a base, as opposed to other terms such as "facilities" or
"installation."422 In strategic literature, "base" is defined as an installation "over
which the user State has a right to exclusive control in an extraterritorial
sense."423 Since this definition would exclude most foreign military installations,
a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of "base" is one
that does not fulfill a combat role. He cites an example of the use of the territory
of a state for training purposes, such as to obtain experience in local geography
and climactic conditions or to carry out joint exercises.424 Another example
given is an advanced communications technology installation for purposes of
information gathering and communication.425 Unsurprisingly, he deems these
non-combat uses as borderline situations that would be excluded from the
functional understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a building or
person is presumed to be protected, unless proven otherwise.427 Moreover, the
principle of distinction requires combatants in an armed conflict to distinguish
between lawful targets428 and protected targets.429 In an actual armed conflict
between the U.S. and a third state, the Agreed Locations cannot be considered
U.S. territory, since ownership of territory even in times of armed conflict does
not change.430
Hence, any armed attack by forces of a third state against an Agreed Location
can only be legitimate under international humanitarian law if it is against a bona
fide U.S. military base, facility, or installation that directly contributes to the
military effort of the U.S. Moreover, the third state's forces must take all
measures to ensure that they have complied with the principle of distinction
(between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international law
that would ensure its territorial integrity and national security in the event an
Agreed Location is subjected to attack. As EDCA stands, it does not create the
situation so feared by petitioners - one in which the Philippines, while not
participating in an armed conflict, would be legitimately targeted by an enemy of
the U.S.431
In the second place, this is a policy question about the wisdom of allowing the
presence of U.S. personnel within our territory and is therefore outside the scope
of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations,
areas, or facilities within the military base of another sovereign state is nothing
new on the international plane. In fact, this arrangement has been used as the
framework for several defense cooperation agreements, such as in the following:
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1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432


2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their
military bases.437 That access is without rental or similar costs to the U.S.438
Further, U.S. forces are allowed to undertake construction activities in, and make
alterations and improvements to, the agreed locations, facilities, or areas.439 As
in EDCA, the host states retain ownership and jurisdiction over the said
bases.440
In fact, some of the host states in these agreements give specific military-related
rights to the U.S. For example, under Article IV(l) of the US.-Bulgaria Defense
Cooperation Agreement, "the United States forces x x x are authorized access to
and may use agreed facilities and areas x x x for staging and deploying of forces
and materiel, with the purpose of conducting x x x contingency operations and
other missions, including those undertaken in the framework of the North
Atlantic Treaty." In some of these agreements, host countries allow U.S. forces to
construct facilities for the latters exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new. In
Lim v. Executive Secretary, the Court already upheld the Terms of Reference of
Balikatan 02-1, which authorized U.S. forces to set up "[t]emporary structures
such as those for troop billeting, classroom instruction and messing x x x during
the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that
implement the VFA, the MDT, and the 1953 Military Assistance Agreement. These
executive agreements similarly tackle the "reciprocal provision of logistic
support, supplies, and services,"442 which include "[b ]illeting, x x x operations
support (and construction and use of temporary structures incident to operations
support), training services, x x x storage services, x x x during an approved
activity."443 These logistic supplies, support, and services include temporary use
of "nonlethal items of military equipment which are not designated as significant
military equipment on the U.S. Munitions List, during an approved activity."444
The first Mutual Logistics Support Agreement has lapsed, while the second one
has been extended until 2017 without any formal objection before this Court
from the Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to those in
the aforementioned executive agreements. Instead of authorizing the building of
temporary structures as previous agreements have done, EDCA authorizes the
U.S. to build permanent structures or alter or improve existing ones for, and to
be owned by, the Philippines.445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly constructed permanent or
non-relocatable structures.446 Under EDCA, U.S. forces will also be allowed to
use facilities and areas for "training; x x x; support and related activities; x x x;
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temporary accommodation
activities.447

of

personnel;

communications"

and

agreed

Concerns on national security problems that arise from foreign military


equipment being present in the Philippines must likewise be contextualized. Most
significantly, the VFA already authorizes the presence of U.S. military equipment
in the country. Article VII of the VFA already authorizes the U.S. to import into or
acquire in the Philippines "equipment, materials, supplies, and other property"
that will be used "in connection with activities" contemplated therein. The same
section also recognizes that "[t]itle to such property shall remain" with the US
and that they have the discretion to "remove such property from the Philippines
at any time."
There is nothing novel, either, in the EDCA provision on the prepositioning and
storing of "defense equipment, supplies, and materiel,"448 since these are
sanctioned in the VFA. In fact, the two countries have already entered into
various implementing agreements in the past that are comparable to the present
one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces "may share x x x
in the use of their resources, equipment and other assets." Both the 2002 and
2007 Mutual Logistics Support Agreements speak of the provision of support and
services, including the "construction and use of temporary structures incident to
operations support" and "storage services" during approved activities.449 These
logistic supplies, support, and services include the "temporary use of x x x
nonlethal items of military equipment which are not designated as significant
military equipment on the U.S. Munitions List, during an approved activity."450
Those activities include "combined exercises and training, operations and other
deployments" and "cooperative efforts, such as humanitarian assistance,
disaster relief and rescue operations, and maritime anti-pollution operations"
within or outside Philippine territory.451 Under EDCA, the equipment, supplies,
and materiel that will be prepositioned at Agreed Locations include
"humanitarian assistance and disaster relief equipment, supplies, and materiel.
"452 Nuclear weapons are specifically excluded from the materiel that will be
prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the
threat to our national security. If anything, EDCA increases the likelihood that, in
an event requiring a defensive response, the Philippines will be prepared
alongside the U.S. to defend its islands and insure its territorial integrity pursuant
to a relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the MDT only
refers to mutual help and defense in the Pacific area.453 We believe that any
discussion of the activities to be undertaken under EDCA vis-a-vis the defense of
areas beyond the Pacific is premature. We note that a proper petition on that
issue must be filed before we rule thereon. We also note that none of the
petitions or memoranda has attempted to discuss this issue, except only to
theorize that the U.S. will not come to our aid in the event of an attack outside of
the Pacific. This is a matter of policy and is beyond the scope of this judicial
review.

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In reference to the issue on telecommunications, suffice it to say that the initial


impression of the facility adverted to does appear to be one of those that require
a public franchise by way of congressional action under Section 11, Article XII of
the Constitution. As respondents submit, however, the system referred to in the
agreement does not provide telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the
telecommunication system is solely for the use of the U.S. and not the public in
general, and that this system will not interfere with that which local operators
use. Consequently, a public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons within Philippine
territory is entirely speculative. It is noteworthy that the agreement in fact
specifies that the prepositioned materiel shall not include nuclear weapons.455
Petitioners argue that only prepositioned nuclear weapons are prohibited by
EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.456 The general prohibition on nuclear weapons, whether
prepositioned or not, is already expressed in the 1987 Constitution.457 It would
be unnecessary or superfluous to include all prohibitions already in the
Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under the law
must originate from Congress. This allegation ignores jurisprudence on the
government's assumption of tax liability. EDCA simply states that the taxes on the
use of water, electricity, and public utilities are for the account of the Philippine
Government.458 This provision creates a situation in which a contracting party
assumes the tax liability of the other.459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable stipulations on
the assumption of tax liability. Afterwards, we concluded that an enforceable
assumption of tax liability requires the party assuming the liability to have actual
interest in the property taxed.460 This rule applies to EDCA, since the Philippine
Government stands to benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces, disaster preparation, and
the preferential use of Philippine suppliers.461 Hence, the provision on the
assumption of tax liability does not constitute a tax exemption as petitioners have
posited.
Additional issues were raised by petitioners, all relating principally to provisions
already sufficiently addressed above. This Court takes this occasion to emphasize
that the agreement has been construed herein as to absolutely disauthorize the
violation of the Constitution or any applicable statute. On the contrary, the
applicability of Philippine law is explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by
noted personalities in Philippine history arises not so much from xenophobia, but
from a genuine desire for self-determination, nationalism, and above all a
commitment to ensure the independence of the Philippine Republic from any foreign
domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of
his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him
when he deems that additional security measures are made necessary by the times.
As it stands, the Philippines through the Department of Foreign Affairs has filed
several diplomatic protests against the actions of the People's Republic of China in
the West Philippine Sea;462 initiated arbitration against that country under the

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United Nations Convention on the Law of the Sea;463 is in the process of


negotiations with the Moro Islamic Liberation Front for peace in Southern
Philippines,464 which is the subject of a current case before this Court; and faces
increasing incidents of kidnappings of Filipinos and foreigners allegedly by the Abu
Sayyaf or the New People's Army.465 The Philippine military is conducting reforms
that seek to ensure the security and safety of the nation in the years to come.466 In
the future, the Philippines must navigate a world in which armed forces fight with
increasing sophistication in both strategy and technology, while employing
asymmetric warfare and remote weapons.
Additionally, our country is fighting a most terrifying enemy: the backlash of Mother
Nature. The Philippines is one of the countries most directly affected and damaged
by climate change. It is no coincidence that the record-setting tropical cyclone
Yolanda (internationally named Haiyan), one of the most devastating forces of nature
the world has ever seen hit the Philippines on 8 November 2013 and killed at least
6,000 people.467 This necessitated a massive rehabilitation project.468 In the
aftermath, the U.S. military was among the first to extend help and support to the
Philippines.
That calamity brought out the best in the Filipinos as thousands upon thousands
volunteered their help, their wealth, and their prayers to those affected. It also
brought to the fore the value of having friends in the international community.
In order to keep the peace in its archipelago in this region of the world, and to
sustain itself at the same time against the destructive forces of nature, the
Philippines will need friends. Who they are, and what form the friendships will take,
are for the President to decide. The only restriction is what the Constitution itself
expressly prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it


remains consistent with existing laws and treaties that it purports to implement.
WHEREFORE, we hereby DISMISS the petitions.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice
WE CONCUR:
See Separate Concurring Opinion
ANTONIO T. CARPIO
Associate Justice PRESBITERO J. VELASCO
Associate Justice
I dissent:
See my dissenting opinion
TERESITA J. LEONARDO-CA CASTRO
Associate Justice I dissent:
See my Dissenting Opinion
ARTURO D. BRION
Associate Justice
I join J. carpio's opinion
DIOSDADO M. PERALTA
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Associate Justice I join the separate concurring of J. Carpio


LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice JOSE CATRAL MENDOZA
Associate Justice
BIENVENIDO L. REYES
Associate Justice I join the dissenting opinion
ESTELA M. PERLAS-BERNABE
Associate Justice
I dissent. See separate opinion
MARVIC M.V.F. LEONEN
Associate Justice No Part
FRANCIS H. JARDELEZA*
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Saguisag vs Executive Secretary


Case Digest: GR 212426 Jan 12, 2016
Facts:
Petitioners, as citizens, taxpayers and former legislators, questioned before the
SC the constitutionality of EDCA (Enhanced Defense Cooperation Agreement), an
agreement entered into by the executive department with the US and ratified on
June 6, 2014. Under the EDCA, the PH shall provide the US forces the access and
use of portions of PH territory, which are called Agreed Locations. Aside from the
right to access and to use the Agreed Locations, the US may undertake the
following types of activities within the Agreed Locations: security cooperation
exercises; joint and combined training activities; humanitarian and disaster relief
activities; and such other activities that as may be agreed upon by the parties.
Mainly, petitioners posit that the use of executive agreement as medium of
agreement with US violated the constitutional requirement of Art XVIII, Sec 25
since the EDCA involves foreign military bases, troops and facilities whose entry
into the country should be covered by a treaty concurred in by the Senate. The
Senate, through Senate Resolution 105, also expressed its position that EDCA
needs congressional ratification.

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Issue 1: W/N the petitions as citizens suit satisfy the requirements of legal
standing in assailing the constitutionality of EDCA
No. In assailing the constitutionality of a governmental act, petitioners suing as
citizens may dodge the requirement of having to establish a direct and personal
interest if they show that the act affects a public right. But here, aside from
general statements that the petitions involve the protection of a public right, and
that their constitutional rights as citizens would be violated, the petitioners failed
to make any specific assertion of a particular public right that would be violated
by the enforcement of EDCA. For their failure to do so, the present petitions
cannot be considered by the Court as citizens suits that would justify a disregard
of the aforementioned requirements.
Issue 2: W/N the petitioners have legal standing as taxpayers
No. Petitioners cannot sue as taxpayers because EDCA is neither meant to be a
tax measure, nor is it directed at the disbursement of public funds.
A taxpayers suit concerns a case in which the official act complained of directly
involves the illegal disbursement of public funds derived from taxation. Here,
those challenging the act must specifically show that they have sufficient
interest in preventing the illegal expenditure of public money, and that they will
sustain a direct injury as a result of the enforcement of the assailed act.
Applying that principle to this case, they must establish that EDCA involves the
exercise by Congress of its taxing or spending powers. A reading of the EDCA,
however, would show that there has been neither an appropriation nor an
authorization of disbursement.
Issue 3: W/N the petitions qualify as legislators suit
No. The power to concur in a treaty or an international agreement is an
institutional prerogative granted by the Constitution to the Senate.
In a
legislators suit, the injured party would be the Senate as an institution or any of
its incumbent members, as it is the Senates constitutional function that is
allegedly being violated. Here, none of the petitioners, who are former senators,
have the legal standing to maintain the suit.
Issue 4: W/N the SC may exercise its Power of Judicial Review over the case
Yes.
Although petitioners lack legal standing, they raise matters of
transcendental importance which justify setting aside the rule on procedural
technicalities. The challenge raised here is rooted in the very Constitution itself,
particularly Art XVIII, Sec 25 thereof, which provides for a stricter mechanism
required before any foreign military bases, troops or facilities may be allowed in
the country. Such is of paramount public interest that the Court is behooved to
determine whether there was grave abuse of discretion on the part of the
Executive Department.
Brion Dissent
Yes, but on a different line of reasoning. The petitioners satisfied the requirement
of legal standing in asserting that a public right has been violated through the
commission of an act with grave abuse of discretion. The court may exercise its
power of judicial review over the act of the Executive Department in not
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submitting the EDCA agreement for Senate concurrence not because of the
transcendental importance of the issue, but because the petitioners satisfy the
requirements in invoking the courts expanded jurisdiction. Read more
Issue 5: W/N the non-submission of the EDCA agreement for concurrence by the
Senate violates the Constitution
No. The EDCA need not be submitted to the Senate for concurrence because it is
in the form of a mere executive agreement, not a treaty. Under the Constitution,
the President is empowered to enter into executive agreements on foreign
military bases, troops or facilities if (1) such agreement is not the instrument that
allows the entry of such and (2) if it merely aims to implement an existing law or
treaty.
EDCA is in the form of an executive agreement since it merely involves
adjustments in detail in the implementation of the MTD and the VFA. These
are existing treaties between the Philippines and the U.S. that have already been
concurred in by the Philippine Senate and have thereby met the requirements of
the Constitution under Art XVIII, Sec 25. Because of the status of these prior
agreements, EDCA need not be transmitted to the Senate.
De Castro Dissent
No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the
MDT. Whether the stay of the foreign troops in the country is permanent or
temporary is immaterial because the Constitution does not distinguish. The
EDCA clearly involves the entry of foreign military bases, troops or facilities in
the country. Hence, the absence of Senate concurrence to the agreement makes
it an invalid treaty. Read more

Duterte determined to stop joint patrols in South China


Sea
October 13, 2016
South China Sea
Malacaang said on Wednesday that President Duterte was determined to stop
joint patrols with the United States in the South China Sea despite Supreme
Court Associate Justice Antonio Carpios reminder that the Constitution
mandated the state to protect the countrys territorial waters and exclusive
economic zone (EEZ).
Presidential spokesperson Ernesto Abella said Mr. Duterte ordered a stop to joint
patrols between the Philippine Navy and the US Navy because he did not want
any Philippine action that China might deem hostile.
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ADVERTISEMENT
The two navies began joint patrols in the South China Sea in April under the
Enhanced Defense Cooperation Agreement signed by the Philippines and the
United States two years ago.
The joint patrols began as the UN-backed Permanent Court of Arbitration in The
Hague prepared to hand down a decision in an action brought by the Philippines
challenging Chinas claim to 90 percent of the South China Sea, including waters
within the Philippines 370-kilometer EEZ.
On July 12, the tribunal ruled against China, saying it had no historic title to the
South China Sea and had violated the Philippines right to fish and explore for
resources in waters within its EEZ.
China, which refused to take part in the arbitration proceedings, rejected the
decision, saying it would not change the situation in the South China Sea.
To assert its claims in the South China Sea, China is building artificial islands on
reefs in the Spratly archipelago, topping some with airstrips that can handle
large military planes.
The militarization of the area has raised tensions between China and its rival
claimantsBrunei, Malaysia, the Philippines and Vietnambut Beijing blames
the tensions on the United States, which it claims is trying to contain its rise as a
potential economic and military power in Asia.
Last month, Mr. Duterte said there would be no more joint patrols, as he did not
want the Philippines to be dragged into a conflict between the United States and
China over dominance in the South China Sea.
But Carpio, who has done extensive studies of the territorial dispute between the
Philippines and China, said Mr. Duterte had a duty to protect the countrys
territory.
Speaking to reporters at the closing ceremonies of the Philippine Amphibious
Landing Exercise (Phiblex 33) at Philippine Marine Corps headquarters in Taguig
City on Tuesday, Carpio said the Constitution mandated the State to protect the
countrys waters, which can be done only by sending patrol vessels to prevent
foreigners from poaching on the countrys marine resources.
Carefully considered
He also said the Armed Forces of the Philippines was responsible for protecting
the national territory. Who is the head of the Armed Forces? The President, he
said.
Carpio said Mr. Duterte must rethink his position.
There is only one power on earth that can stop the Chinese from poaching on
the Philippine EEZ and that is the [United States], he said.

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Abella said Mr. Dutertes decision had been carefully considered and is fully
aware of his responsibility regarding the EEZ.
He has his own alternatives regarding the matter, he added.
Speaking during the Philippine Coast Guard anniversary on Wednesday, Mr.
Duterte reiterated that he would not break any of the Philippines security
agreements with the United States.
But he said Phiblex 33 was definitely the last joint military exercises of his
presidency.
He said he had instructed Defense Secretary Delfin Lorenzana not to make
preparations for joint maneuvers next year.
Its about time we change the rules here, Mr. Duterte said. I insist that we
realign, that there will be no more exercises next year. Do not prepare, I told
Defense Secretary Lorenzana. Do not make preparations for next years [war
games]. I dont want it anymore.
I will chart an independent foreign policy. We will not break or abrogate existing
treaties because they say this will provide us with an umbrella, Mr. Duterte said.
But he expressed cynicism about how the treaties could protect the Philippines,
especially in a catastrophic World War III.
See you in heaven, he said.

Philippines Suspends Patrols With U.S. in South China


Sea
Step, while small, is first sign of split in alliance since election of President
Rodrigo Duterte

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Filipinos protested against U.S.-Philippine military exercises in Manila on Tuesday.


ENLARGE
Filipinos protested against U.S.-Philippine military exercises in Manila on Tuesday.
PHOTO: FRANCIS R. MALASIG/EUROPEAN PRESSPHOTO AGENCY
By TREFOR MOSS
Updated Oct. 8, 2016 12:20 a.m. ET
104 COMMENTS
MANILAThe Philippine defense chief said Friday that he had suspended
participation in any joint patrols with the U.S. of the disputed South China Sea,
the first concrete sign of a crack in the military alliance following the election of
President Rodrigo Duterte.
Defense Secretary Delfin Lorenzana also said he also would ask a small
detachment of American troops providing counterterrorism assistance on the
southern island of Mindanao to leave as the president requested. But he said that
would happen only after the Philippine military can carry out such operations on
its own, something that could take years.
Since taking office June 30, Mr. Duterte has caught U.S. officials and his own
military off guard with seemingly off-the-cuff pronouncements with potentially
far-reaching strategic implications. His aim, he said, is to loosen ties with the U.S.
and give his Southeast Asian country a more independent foreign policy, with
new alliances with China and Russia.
In the wake of several anti-American outbursts, defense officials had repeatedly
said they were waiting to see whether the presidents words amounted to actual
policy, while U.S. officials said they hadnt been notified of any changes to the
alliance.
The U.S. Embassy in Manila on Saturday confirmed the U.S. has not received any
formal notification from Philippine officials regarding a halt to joint military
patrols or exercises.
Mr. Lorenzanas news conference indicated that the military was still sometimes
out of the loop. Asked about the presidents statement last week that he wants
to end all military exercises with U.S. forces, Mr. Lorenzana said his department
was still awaiting an official directive. We heard it on TV, he said.
In October 2015, U.S. Marines and their Philippine counterparts conducted an
exercise in an area south of Manila. ENLARGE
In October 2015, U.S. Marines and their Philippine counterparts conducted an
exercise in an area south of Manila. PHOTO: ASSOCIATED PRESS
The two countries conduct 28 such drills annually, Mr. Lorenzana said, including
one that began Tuesday and ends Oct. 12.
Mr. Lorenzana said there had only been two exercises involving the U.S. and
Philippine navies in the South China Sea, but any future activity there was now
suspended.
Asked if the U.S. had been informed, he said they know it already. There is no
patrol in the South China Sea.
Armed Forces spokesman Brig. Gen. Restituto Padilla said later that no formal
notice had been sent.
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Mr. Duterte has said he wanted the patrols halted to avoid antagonizing Beijing,
even though the Philippines won an arbitration case over the disputed territory in
July, shortly after he took office.
Mr. Duterte also said he wanted U.S. troops out of Mindanao for their own safety.
The Philippine military is engaged in a major assault against the extremist Abu
Sayyaf group there and relies on U.S. for surveillance support.
Mr. Lorenzana said he had told the president that the 107 U.S. personnel in
Mindanao could protect themselves.
All they do is operate their drones and some intelligence equipment to help our
troops in the south, the defense chief told reporters. Later on President Duterte
said he doesnt want [them] to leave immediately but maybe in the future.
He said the Philippine military already planned to have the Americans leave
when we acquire our own drones.
Washington and Manila had been deepening defense ties in recent years to
counterbalance Chinas rising influence, especially in the South China Sea, where
Beijing has reclaimed land and constructed military bases in disputed areas in
recent years.
A 2014 defense pact envisaging American troop deployments to Philippine bases
had appeared to entrench the relationship. Mr. Dutertes dramatic change of
course now leaves those plans uncertain.
Foreign Secretary Perfecto Yasay Jr. spelled out the presidents position more
explicitly in a Wednesday Facebook post entitled America has failed us. It was
time for the Philippines to free itself from the shackling dependency on the U.S.
which ran the Philippines as a colony until 1946, he wrote.
Asked about the post, Mr. Lorenzana said there is truth to their statement.
Since a mutual defense treaty was signed in 1951, the U.S. had only provided the
Philippine military with hand-me-downs, he said. He also criticized past
Philippine governments for not funding new equipment.
Mr. Lorenzana said he had tried to reassure his U.S. counterparts about the
endurance of the alliance, but said the president was sensitive about criticism
over his war on terrorism and drugs especially.
His first three months have been marked by a violent assault on alleged drug
dealers and other criminals, in which more than 3,400 people have been killed,
according to police figures. The U.S. and others have repeatedly raised concerns
about human rights violations and respect for due process and the rule of law.
Mr. Duterte feels that, Why do they criticize me when Im doing something
good for my country?, Mr. Lorenzana said.

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Will the EDCA resolve the West Philippine Sea disputes?


Published May 5, 2014 11:41am
By RICHARD JAVAD HEYDARIAN
Recently, I had the opportunity to present at an experts conference on the South
China Sea disputes in Myanmar, the current chair of the Association of Southeast
Asian Nations (ASEAN). The participation of high-level officials from across the
region underlined the growing importance and appreciation of the role of
apolitical academics to bridge differences among disputing states. No less than
the ASEAN Secretary-General Le Luong Minh was in attendance, who
emphatically called for a swift, peaceful resolution to increasingly militarized
territorial spats. As a (former) veteran Vietnamese diplomat, he was in no mood
for sugar-coating an increasingly troublesome showdown between Beijing and its
smaller neighbors in Hanoi and Manila.
Among the issues that I raised, along with colleagues from other countries, was
the urgency to establish a binding Code of Conduct (CoC) in the South China Sea,
making sure China will not be in a position to leverage its military-economic
prowess outside agreed-upon principles of international law. In short, there is an
urgent need to overcome the ASEAN Way: the incredibly gradualist, consensusdriven decision-making approach, which has often rendered the regional
organization toothless in face of emerging security challenges in Asia. And to my
surprise, after years of disappointment with existing regional mechanisms,
officials from Myanmar as well as the ASEAN seemed quite supportive of a
robust, rule-based management of the conflicts in the South China Sea.
Despite all its imperfections, the ASEAN represents an indispensable element in
any prospective diplomatic resolution of the South China Sea disputes. For
weaker countries such as the Philippines, creative and stubborn diplomacy
represents the best way forward, because the alternativeis pure balance of
power politics, which demands huge military assets, and high-profile legal
confrontation, which is a largely symbolic act in absence of complianceenforcement mechanisms.
No less than Niccolo Machiavelli, one of historys greatest strategic thinkers,
always warned smaller states against openly siding with and seeking the
protection of a bigger power against another one. After all, he argued, there is a
high probability that at some point the weaker party ends up as part of a grand
bargain between the two powerful states. And this brings us to President
Obamas historic visit to the Philippines, which coincided with the signing of a
new security pact between Washington and Manila, the Enhanced Defense
Cooperation Agreement (EDCA).
Our government officials have described the EDCA as a concrete manifestation of
a strengthening Philippine-U.S. military alliance, which is essential to defending
our territorial claims in the South China Sea. But critics have described it as an
agreement that at best provides marginal strategic advantages for the
Philippines and at worst may violate our constitutional restrictions on the
establishment of foreign military bases in the country.

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What no one cant deny, however, is that the Philippines has fallen short of
establishing a modern, functioning armed forces, which will serve as a backbone
of our national security. As an archipelagic country, we have extremely small,
under-funded navy and coast guard, which are dwarfed by our relatively large
army. Our decision to abrogate the American military bases agreement in 1991
was supposed to pave the way for the development of an indigenous defense
capability under a sustained, long-term military modernization program. But a
combination of chronic corruption, low defense spending, lack of strategic
foresight among our leaders, and continuous battle with domestic insurgency has
prevented us from developing even a minimum deterrence capability. Still, we
were able to avoid an all-out military confrontation with China throughout the
1990s and early-2000s, largely because of our relentless diplomatic efforts within
the ASEAN, culminating in the Declaration on the Conduct of Parties in the South
China Sea (DoC).
Meanwhile, President Obama made it quite clear that the Philippine - U.S. Mutual
Defense Treaty (MDT) doesnt necessarily guarantee Washingtons automatic
military support if a war were to erupt between the Philippines and China over
contested features in the South China Sea. He was quite clear that the U.S.
doesnt take sides on the sovereignty of disputed territories, and was primarily
concerned with freedom of navigation in international waters.
After all, one must underscore the fact that the Obama administration has
consistently stated that China represents the U.S. most important bilateral
relationship in the 21st century, and, as he declared during his trip in Manila, "it's
inevitable that China is going to be a dominant power in [Asia] region." In Japans
case, however, Obama had little choice but to stand firmly with its Asian ally
over the disputed territories in East China Sea, largely because (a) the Japan-U.S.
MDT unequivocally states Washingtons obligation to protect Tokyo against any
external attack and (b) Japan has demonstrated its continuous and effective
exercise of jurisdiction over the Senkaku/Diaoyu islands.
It is very clear that Washingtons primary goal is to ensure a peaceful, diplomatic
resolution of the South China Sea disputes, avoiding a military confrontation with
China as much as possible. No wonder, the EDCA is largely an agreement that
only builds on existing defense cooperation between the Philippines and the U.S.,
and doesnt significantly enhance our minimum deterrence capability. It is
precisely for this reason that we should contemplate a more creative diplomatic
approach under the auspices of the ASEAN. After all, China is extremely wary of
fully alienating the ASEAN, and multilateral regional pressure on Beijing is the
best way forward.

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